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MEDICAL ASSISTANCE IN DYING

:
A PATIENT-CENTRED APPROACH

Report of the Special Joint Committee
on Physician-Assisted Dying

Hon. Kelvin Kenneth Ogilvie and Robert Oliphant
Joint Chairs

FEBRUARY 2016
42nd PARLIAMENT, 1st SESSION

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MEDICAL ASSISTANCE IN DYING:
A PATIENT-CENTRED APPROACH

Report of the Special Joint Committee
on Physician-Assisted Dying

Hon. Kelvin Kenneth Ogilvie and Robert Oliphant
Joint Chairs

FEBRUARY 2016
42nd PARLIAMENT, 1st SESSION

SPECIAL JOINT COMMITTEE
ON PHYSICIAN-ASSISTED DYING
JOINT CHAIRS
Hon. Kelvin Kenneth Ogilvie and Robert Oliphant

VICE-CHAIRS
Michael Cooper
Murray Rankin

MEMBERS REPRESENTING THE SENATE
Hon. James S. Cowan

Hon. Nancy Ruth

Hon. Serge Joyal

Hon. Judith G. Seidman

Hon. Kelvin Kenneth Ogilvie

MEMBERS REPRESENTING THE HOUSE OF COMMONS
Harold Albrecht

Denis Lemieux

John Aldag

James Maloney

René Arseneault

Robert Oliphant

Hon. Steven Blaney

Murray Rankin

Guy Caron

Brigitte Sansoucy

Michael Cooper

Brenda Shanahan

Julie Dabrusin

Mark Warawa

Gérard Deltell

Borys Wrzesnewskyj

Garnett Genuis

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OTHER SENATORS AND MEMBERS OF PARLIAMENT
WHO PARTICIPATED
Luc Berthold

Rachael Harder

Mike Bossio

Kamal Khera

Sean Casey

Hon. Carolyn Stewart Olsen

Hon. Norman E. Doyle

Hon. Betty E. Unger

Hon. Tobias C. Enverga Jr.

Arnold Viersen

Joël Godin

JOINT CLERKS OF THE COMMITTEE
Shaila Anwar
Cynara Corbin
Andrea McCaffrey

LIBRARY OF PARLIAMENT
Parliamentary Information and Research Service
Julia Nicol
Marlisa Tiedemann

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SPECIAL JOINT COMMITTEE
ON PHYSICIAN-ASSISTED DYING
has the honour to present its
FIRST REPORT

Pursuant to its Orders of Reference from the Senate and from the House of
Commons dated December 11, 2015, the Committee has studied Medical Assistance in
Dying: A Patient-Centred Approach and has agreed to report the following:

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TABLE OF CONTENTS
MEDICAL ASSISTANCE IN DYING: A PATIENT-CENTRED APPROACH...................... 1
INTRODUCTION ....................................................................................................... 1
BACKGROUND ......................................................................................................... 4
A. Division of Powers between Federal and Provincial Governments .................. 4
1. Criminal Law and Administration of Justice .............................................. 4
2. Health ....................................................................................................... 4
B. Quebec’s Legislation ........................................................................................ 7
C. Federal External Panel on Options for a Legislative Response to Carter
v. Canada ........................................................................................................ 7
D. Provincial–Territorial Expert Advisory Group .................................................... 8
TERMINOLOGY ........................................................................................................ 9
ELIGIBILITY CRITERIA FOR MEDICAL ASSISTANCE IN DYING .......................... 11
A. Condition ........................................................................................................ 11
1. Terminal Illness as a Requirement ......................................................... 12
2. Mental Illness ......................................................................................... 13
B. Suffering ......................................................................................................... 15
C. Informed Consent .......................................................................................... 15
D. Age ................................................................................................................ 18
E. Advance Request ........................................................................................... 21
F. Residency Requirement ................................................................................. 24
THE PROCESS INVOLVED IN REQUESTING MEDICAL ASSISTANCE
IN DYING ................................................................................................................. 25
A. Conscientious Objection to Participating in Medical Assistance in Dying ....... 25
B. Assessments .................................................................................................. 27
C. Who Should Provide Medical Assistance in Dying? ....................................... 28
D. Waiting or Reflection Period ........................................................................... 29
E. Prior Review of Medical Assistance in Dying Requests ................................. 30
F. Ancillary Considerations ................................................................................. 30
OVERSIGHT OF THE MEDICAL ASSISTANCE IN DYING PROCESS:
REPORTING REQUIREMENTS AND DATA COLLECTION .................................... 31
IMPROVED SUPPORTS AND SERVICES .............................................................. 32

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A. Support for Indigenous Peoples and Communities ........................................ 32
B. Palliative Care ................................................................................................ 33
C. Mental Health ................................................................................................. 33
D. Dementia........................................................................................................ 34
LIST OF RECOMMENDATIONS ............................................................................. 35
APPENDIX A: LIST OF WITNESSES ...................................................................... 39
APPENDIX B: LIST OF BRIEFS .............................................................................. 43
MINUTES OF PROCEEDINGS ............................................................................... 49
DISSENTING OPINION OF THE MEMBERS OF PARLIAMENT OF THE
CONSERVATIVE PARTY OF CANADA ................................................................... 51
SUPPLEMENTARY OPINION OF THE NEW DEMOCRATIC PARTY
OF CANADA ........................................................................................................... 57

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MEDICAL ASSISTANCE IN DYING:
A PATIENT-CENTRED APPROACH
INTRODUCTION
On 6 February 2015, in Carter v. Canada (Attorney General) (Carter, or the Carter
decision),1 the Supreme Court of Canada declared section 14 and section 241(b) of the
Criminal Code2 void
insofar as they prohibit physician-assisted death for a competent adult person who
(1) clearly consents to the termination of life; and (2) has a grievous and irremediable
medical condition (including an illness, disease or disability) that causes enduring suffering
that is intolerable to the individual in the circumstances of his or her condition. “Irremediable”,
it should be added, does not require the patient to undertake treatments that are not
3
acceptable to the individual.

The Court found that the prohibition infringed the claimants’ rights under section 7
of the Canadian Charter of Rights and Freedoms.4 The Court noted that “[i]t is for
Parliament and the provincial legislatures to respond, should they so choose, by enacting
legislation consistent with the constitutional parameters set out in these reasons.”5 While
the issue of medical assistance in dying (MAID)6 is complex and many observers are
concerned about protecting vulnerable individuals from being induced to seek MAID, the
Court also noted that the trial judge “concluded that a permissive regime with properly
designed and administered safeguards was capable of protecting vulnerable people from
abuse and error. While there are risks, to be sure, a carefully designed and managed
system is capable of adequately addressing them.”7
The Court suspended its declaration of invalidity so that it would not come into
effect for 12 months, and then, on 15 January 2016, granted a further four-month extension

1

For more information on Carter v. Canada (Attorney General), please see Martha Butler and Marlisa
Tiedemann, Carter v. Canada: The Supreme Court of Canada's Decision on Assisted Dying, Library of
Parliament, Background Paper No. 2015-47-E, October 2015.

2

Criminal Code, R.S.C., 1985, c. C-46.

3

Carter v. Canada (Attorney General), 2015 SCC 5, para. 127.

4

Constitution Act, 1982. Section 7 states that: “Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

5

Carter, 2015, para. 126.

6

The Committee is adopting the term “medical assistance in dying” instead of “physician-assisted dying,” as it
reflects the reality that health care teams, and not only physicians, will be involved in the process. This report
will continue to use the term “physician-assisted dying” in any quotes from witnesses or external material
reviewed by the Committee if that is the term that has been used.
For an explanation of other terms relating to medical assistance in dying, please see the section “Terminology”
in this report.

7

Ibid., para. 105.

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to that suspension. Quebec’s An Act respecting end-of-life care was exempted from the
extension, and the Court also granted an exemption “to those who wish to exercise their
rights so that they may apply to the superior court of their jurisdiction for relief in accordance
with the criteria set out in para. 127 of our reasons in Carter.”8
On 11 December 2015, motions were passed in the House of Commons and the
Senate to establish a special joint committee (Committee) whose purpose is:
to review the report of the External Panel on Options for a Legislative Response to Carter v.
Canada and other recent relevant consultation activities and studies, to consult with
Canadians, experts and stakeholders, and make recommendations on the framework of a
federal response on physician-assisted dying that respects the Constitution, the Charter of
Rights and Freedoms, and the priorities of Canadians.

The motions also stated that “the Committee be directed to consult broadly, take
into consideration consultations that have been undertaken on this issue, examine
relevant research studies and literature and review models being used or developed in
other jurisdictions.”9
Guided by Carter, the Committee held 16 meetings and heard from 61 witnesses
(listed in Appendix A). It also received over 100 written submissions (listed in Appendix B).
Witnesses highlighted the need to ensure that everyone who meets the eligibility criteria
(which the Committee recommends below) has access to MAID, regardless of where they
live as reflected in the Canada Health Act10 criteria of accessibility and universality.
To further ensure access to this constitutional right, the Committee has provided
recommendations not directly addressed in Carter. As the Supreme Court of Canada
wrote in the decision: “The scope of this declaration is intended to respond to the factual
circumstances in this case. We make no pronouncement on other situations where
physician-assisted dying may be sought.”11 With respect to accessibility, the Committee
also affirms that MAID should be able to be performed in any appropriate location, not only
in hospitals, including in a person’s home. Our response to the Carter ruling must be
focused on the needs and wishes of patients. The Committee was unanimous in
recognizing the overarching need to have safeguards to protect the vulnerable.
Submissions were both thoughtful and thought-provoking, raising issues that were
directly relevant to the Committee’s task of proposing a federal framework for MAID.
The Committee heard overwhelming support for a collaborative approach among the
federal government, the provinces and territories, and the provincial/territorial medical
regulatory authorities to develop a framework relating to MAID. Witnesses wanted to
avoid what some describe as a “patchwork approach” to the issue, in which the eligibility
criteria and process for accessing MAID vary greatly from one province or territory to
8

Carter v. Canada (Attorney General), 2016 SCC 4, para. 7.

9

House of Commons, Journals, No. 7, 1 Session, 42 Parliament, 11 December 2015, p. 50; Senate,
st
nd
Journals, No. 6, 1 Session, 42 Parliament, 11 December 2015, p. 56.

10

Canada Health Act, R.S.C., 1985, c. C-6.

11

Carter 2015, para. 127.

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another. The recommendations that flow from our hearings relate to who should be eligible
for MAID, and what sort of process should be put in place to ensure that only those
individuals who are eligible for MAID can avail themselves of it.
The Committee emphasizes the need “to recognize the value of Aboriginal healing
practices and use them in the treatment of Aboriginal patients in collaboration with
Aboriginal healers and Elders where requested by Aboriginal patients” as recommended
in the Final Report of the Truth and Reconciliation Commission of Canada.12 In addition,
there was an overwhelming consensus among witnesses that palliative care needs to be
improved more generally, and that better supports need to be provided for individuals
with disabilities, individuals with mental health issues, and individuals with dementia.
We recognize that considerable work needs to be done to ensure that individuals do not
seek MAID as a result of a lack of proper community and other supports. The Committee
provides recommendations on this issue at the end of this report.
Below, the Committee also puts forward its findings and recommendations for a
legislative framework that will include, but not be limited to, amending the Criminal Code.
The recommendations relate to eligibility for MAID (which are substantive safeguards),
procedural safeguards, and oversight. The substantive and procedural safeguards that the
Committee recommends are listed below, and are described later in this report.
Substantive Safeguards:

A grievous and irremediable medical condition (including an illness,
disease or disability) is required;

Enduring suffering that is intolerable to the individual in the
circumstances of his or her condition is required;

Informed consent is required;

Capacity to make the decision is required at the time of either the
advance or contemporaneous request; and

Eligible individuals must be insured persons eligible for publicly funded
health care services in Canada.

Procedural Safeguards:

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Two independent doctors must conclude that a person is eligible;

A request must be in writing and witnessed by two independent
witnesses;

Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future, Summary
of the Final Report of the Truth and Reconciliation Commission of Canada, 2015.

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A waiting period is required based, in part, on the rapidity of progression
and nature of the patient’s medical condition as determined by the
patient’s attending physician;

Annual reports analyzing medical assistance in dying cases are to be
tabled in Parliament; and

Support and services, including culturally and spiritually appropriate
end-of-life care services for Indigenous patients, should be improved
to ensure that requests are based on free choice, particularly for
vulnerable people.

BACKGROUND
A. Division of Powers between Federal and Provincial Governments13
1. Criminal Law and Administration of Justice
Sections 91 and 92 of the Constitution Act, 1867 assign exclusive legislative authority
over certain matters to either Parliament or to provincial legislatures. Section 91(27) of the
Constitution Act, 186714 assigns exclusive jurisdiction over criminal law to the federal
government, including criminal procedure. To establish that a law is a valid use of
Parliament’s criminal law jurisdiction, there must be a prohibition, a penalty and a criminal
law purpose (suppression of an evil). Such purposes that have been recognized by the
courts include health, morality, public safety and security.
Of note, the administration of justice, including the conduct of most prosecutions, is
a provincial power under section 92(14), as is the imposition of punishment for violating
provincial laws (section 92(15)).
2. Health
While some health-related subjects are listed in sections 91 and 92 of the
Constitution Act, 1867, there is no specific reference to “health” as a general matter.
Health-related subjects and measures can be characterized as being within the jurisdiction
of either Parliament or provincial legislatures depending on the purpose and effect of a
particular measure. Parliament can and has exercised its jurisdiction over health matters
under its criminal law power (section 91(27)); the federal spending power, which is inferred
from its jurisdiction over public debt and property (section 91(1A)); and its general taxing
power (section 91(3)).

13

This section is based on Martha Butler and Marlisa Tiedemann, The Federal Role in Health and Health
Care, Library of Parliament, In Brief No. 2011-91-E, September 2013.
For more detailed information about the division of powers, see Peter W. Hogg Constitutional Law of
Canada, Fifth Edition Supplemented, Volumes 1 and 2, Thomson Carswell, Toronto, 2007.

14

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.).

4

Examples of the use of the federal criminal law power with respect to health matters
include the Food and Drugs Act,15 the Human Pathogens and Toxins Act16 and the
Assisted Human Reproduction Act (AHRA).17 The test involved in determining whether
legislation related to health based on the federal criminal law power is validly enacted is
(1) whether the legislation contains a prohibition and a penalty; and (2) whether it is
directed at a “legitimate public health evil” (or other criminal law purpose). In a 4-4-1
decision, parts of the AHRA were struck down by the Supreme Court of Canada in 2010
as being outside the power of Parliament.18 In that case, the majority stated:
Although a reasoned apprehension of harm necessarily constitutes a criminal law purpose,
health, ethics and morality do not automatically arouse such an apprehension in every case.
For an activity to fall under the criminal law, it must be found that there is an evil to be
suppressed or prevented and that the pith and substance of the provisions in issue is the
suppression of that evil or the elimination of that reasoned risk of harm.
When Parliament exercises a power assigned to it, it can establish national standards.
However, administrative efficiency alone cannot be relied on to justify legislative action by
Parliament (Margarine Reference, at p. 52). The action must be taken within the limits of an
assigned head. Recourse to the criminal law power cannot therefore be based solely on
concerns for efficiency or consistency, as such concerns, viewed in isolation, do not fall
19
under the criminal law. The three criteria of the criminal law must be met.

With the exception of matters that fall under the aforementioned sections, health
is for the most part an area of provincial jurisdiction. For example, the province has
jurisdiction over most hospitals and health care services, the practice of medicine, the
training of health professionals and the regulation of the medical profession, hospital
and health insurance, and occupational health. Power over these areas is granted
by sections 92(7) (hospitals), 92(13) (property and civil rights) and 92(16) (matters of a
merely local or private nature) of the Constitution Act, 1867.
However, drawing a clear line between federal and provincial jurisdiction can be
difficult, as noted in Canada (Attorney General) v. PHS Community Services Society:
The provincial health power is broad and extensive. It extends to thousands of activities and
to a host of different venues.… To complicate the matter, Parliament has power to legislate
with respect to federal matters, notably criminal law, that touch on health. For instance, it
has historic jurisdiction to prohibit medical treatments that are dangerous, or that it perceives
as “socially undesirable” behaviour: R. v. Morgentaler, [1988] 1 S.C.R. 30; Morgentaler v.
The Queen, [1976] 1 S.C.R. 616; R. v. Morgentaler, [1993] 3 S.C.R. 463. The federal role in
the domain of health makes it impossible to precisely define what falls in or out of the
proposed provincial “core.” Overlapping federal jurisdiction and the sheer size and diversity

15

Food and Drugs Act, R.S.C. 1985, c. F-27.

16

Human Pathogens and Toxins Act, S.C. 2009, c. 24.

17

Assisted Human Reproduction Act, S.C. 2004, c. 2.

18

Reference re Assisted Human Reproduction Act, 2010 SCC 61.

19

Ibid., paras. 243–244.

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of provincial health power render daunting the task of drawing a bright line around a
20
protected provincial core of health where federal legislation may not tread.

In Carter, the Supreme Court concluded:
In our view, the appellants have not established that the prohibition on physician-assisted
dying impairs the core of the provincial jurisdiction. Health is an area of concurrent jurisdiction;
both Parliament and the provinces may validly legislate on the topic: RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 32; Schneider v. The Queen, [1982]
2 S.C.R. 112, at p. 142. This suggests that aspects of physician-assisted dying may be the
subject of valid legislation by both levels of government, depending on the circumstances
and focus of the legislation. We are not satisfied on the record before us that the provincial
power over health excludes the power of the federal Parliament to legislate on physician21
assisted dying.

The federal response to Carter and implementation of a framework surrounding
MAID will need to take into account this complex division of powers and will require close
cooperation with the provinces and territories. A number of witnesses expressed concern
about a “patchwork” approach to MAID.22 One option was outlined by constitutional
scholar Peter Hogg:
[A]lthough it would be very nice if the provinces all came out with uniform legislation, you
have to recognize that it may not happen. One thing you can do is recommend a provision in
the federal law that in effect provides what I call an “equivalence provision”, which in effect
would say that if the federal Minister of Health or the Governor in Council — you could use
any framework — is satisfied that a province or a territory has enacted safeguards that are
substantially equivalent to the federal safeguards, then the federal law would not apply in
that province.
The advantage of doing that is that it would avoid overlapping legislation. Also, if you don't
do something like that, issues of conflict between the federal and provincial law will be quite
complicated, and they will be resolved by the rule of federal paramountcy. That would be a
bad situation. I think it can be resolved by a so-called equivalence provision.
[I]f a province doesn't have a physician-assisted dying regime, then your legislation will be
the only game in town. It will have to operate and it will have to include adequate safeguards
23
against error or abuse.

20

Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, para. 68.

21

Carter v. Canada (Attorney General), 2015 SCC 5, para. 53.

22

See, for example, Parliament, 1 Session, 42 Parliament, Special Joint Committee on Physician-Assisted
Dying (PDAM), Evidence, 27 January 2016, 1705 (Dr. Jeff Blackmer, Canadian Medical Association);
PDAM, Evidence, 26 January 2016, 1830 (Jennifer Gibson, Co-Chair, Provincial-Territorial Expert Advisory
Group on Physician-Assisted Dying).

23

PDAM, Evidence, 25 January 2016, 1150 & 1225 (Peter Hogg, Scholar in Residence, Blake, Cassels &
Graydon LLP, As an Individual).

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B. Quebec’s Legislation24
The Committee wishes to note Quebec’s extensive debate on the issue of MAID,
which proved helpful in our deliberations.
The Quebec legislature struck the Select Committee on Dying with Dignity (Select
Committee) on 4 December 2009. The Select Committee heard from 32 experts and more
than 250 individuals and organizations and received 273 briefs during its work in 2010 and
2011. In March 2012, the Select Committee tabled its report, making 24 recommendations
on palliative care, palliative sedation, advance medical directives, end-of-life care, and
“medical aid in dying.”25
In response to the Select Committee’s report, the Quebec government appointed
an expert panel to explore how to implement the recommended legislative changes.
The panel released its report in January 2013. The report recommended that “medical
aid in dying,” in certain circumstances, be understood as part of the continuum of care.
When seen as an element of end-of-life care, “medical aid in dying” could fall under
provincial jurisdiction over health care delivery.
On 12 June 2013, Bill 52, An Act respecting end-of-life care, was introduced in the
Quebec National Assembly, and received Royal Assent on 5 June 2014. Most of the Act’s
provisions came into force on 10 December 2015.
The law establishes rights with respect to end-of-life care, rules for those who
provide end-of-life care, rules relating to continuous palliative sedation, powers of the
Minister of Health and Social Services, rules relating to advance medical directives, and
rules relating to “medical aid in dying.” The law outlines requirements in order to obtain
“medical aid in dying,” requirements for physicians prior to administering “medical aid in
dying” and various other elements in order to regulate the practice.
C. Federal External Panel on Options for a Legislative Response to Carter
v. Canada
On 17 July 2015, the federal Minister of Justice and the federal Minister of Health
announced the establishment of an external panel to consult Canadians regarding options
to respond to the Carter decision. The panel was to consult with medical authorities and
interveners in the Carter case specifically and, through an online public consultation, with
Canadians more generally. The panel was to report on its findings and propose options for
a legislative response. However, after the election of a new government, a letter to the
panel from the new federal Minister of Justice and the new federal Minister of Health
released publicly on 14 November 2015 extended the deadline for the panel’s report by
one month to 15 December 2015 and modified the terms of the mandate, asking the panel

24

This section is based in part on forthcoming revisions to Julia Nicol and Marlisa Tiedemann, Euthanasia and
Assisted Suicide in Canada, Library of Parliament.

25

“Medical aid in dying” is the term used in the Quebec law.

7

to focus on summarizing the results and key findings of its consultations. It was no longer
to provide legislative options.
As part of its work, in addition to consulting the groups mentioned in the paragraph
above, the External Panel travelled to the Netherlands, Belgium, Switzerland and to the
state of Oregon in the United States to learn about how assisted dying is regulated in
those jurisdictions. The External Panel’s report was submitted to the government on
15 December 2015.
In its final report,26 the External Panel summarized the evidence it received with
respect to the following topics:

forms of assisted dying and terminology;

eligibility criteria;

the request for MAID;

assessing the request;

participation and compliance; and

system oversight.
D. Provincial–Territorial Expert Advisory Group

In mid-August 2015, a provincial–territorial expert advisory group on MAID was
announced.27 The Advisory Group’s work was to “complement the work of the federal
panel” and “provide advice on the development of policies, practices and safeguards for
provinces and territories to consider when physician-assisted dying is legal within their
respective jurisdictions.”28
The Advisory Group’s final report, dated 30 November 2015 and posted publicly on
14 December 2015, contained 43 recommendations.29 Key recommendations include:

“Provinces and territories, preferably in collaboration with the federal
government, should develop and implement a pan-Canadian strategy for
palliative and end-of-life care, including physician-assisted dying”;

26

External Panel on Options for a Legislative Response to Carter v. Canada, Consultations on PhysicianAssisted Dying - Summary of Results and Key Findings, 15 December 2015.

27

All provinces and territories participated in the advisory group except for Quebec, which had passed its own
legislation, and British Columbia, which was an observer to the process.

28

Government of Ontario, “Provinces, Territories Establish Expert Advisory Group On Physician-Assisted
Dying,” News release, 14 August 2015.

29

Provincial–Territorial Expert Advisory Group on Physician-Assisted Dying, Final Report, 30 November 2015
[Provincial-Territorial Report].

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establishing a program within the publicly funded system that will link
patients with an appropriate provider;

amending the Criminal Code to allow MAID by regulated health
professionals acting under the direction of a physician or a nurse
practitioner, and to protect health professionals who participate in MAID;

amending the Criminal Code to ensure that eligibility for MAID is based on
competence rather than age;

having medical regulatory authorities develop guidance/tools for physicians;

not requiring a mandatory waiting period between a request and provision of
assistance in dying;

requiring “conscientiously objecting” health care providers “to inform patients
of all end-of-life options”, including MAID, and requiring providers to give a
referral or direct transfer of care or to contact a third party and transfer the
patient’s records;

having provincial and territorial governments establish review committee
systems to review compliance in all cases of MAID;

establishing a pan-Canadian commission on end-of-life care (preferably in
collaboration with the federal government); and

providing public education about MAID and engaging the public so that it
can inform future developments of related law, policies and practices.

TERMINOLOGY
Euthanasia is the “intentional termination of the life of a person, by another person,
in order to relieve the first person’s suffering.” Voluntary euthanasia is euthanasia
performed in accordance with the wishes of a competent person, expressed personally or
by advance directive.30
Assisted suicide is the act of intentionally ending one’s life with the assistance of
another person who provides the knowledge, means, or both, of doing so.
Generic terms such as “assisted dying” or “assisted death” are also used to
describe both assisted suicide and voluntary euthanasia. “Physician-assisted death” and
“physician-assisted dying” are generic terms used when a doctor is involved either directly
or in supervising another person who is assisting a suicide.31

30

Carter v. Canada (Attorney General), 2012 BCSC 886, para. 38.

31

Ibid., para. 39.

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In the Carter decision, the Supreme Court of Canada used the terms “physicianassisted death” and “physician-assisted dying,” which were the terms used by the
plaintiffs. According to the plaintiffs, these terms include “physician-assisted suicide” and
“consensual physician-assisted death.” Quebec’s An Act respecting end-of-life care uses
the term “medical aid in dying,” which is defined as “care consisting in the administration
by a physician of medications or substances to an end-of-life-patient, at the patient’s
request, in order to relieve their suffering by hastening death.”32 This term includes
voluntary euthanasia but not assisted suicide.
Many witnesses who appeared before the Committee discussed the language that
should be used in relation to MAID. For example, Joanne Klineberg, Senior Counsel,
Criminal Law Policy Section at the Department of Justice, noted:
Some stakeholders take the view that the expressions “physician-assisted suicide” and
“euthanasia” are well defined and clear and must be used in order to avoid confusion
and misunderstanding that arise from more general terms like “physician-assisted dying”.
Others disagree with the use of the terms “physician-assisted suicide“ and “euthanasia”,
believing that they are loaded and stigmatizing terms and that only something more general,
33
like “physician-assisted dying“ should be used.

In its report, the External Panel confirmed that some of the experts and
organizations they consulted prefer the terms “physician-assisted suicide” and
“euthanasia,” while others prefer “physician-assisted dying.”34 The Committee heard
that other organizations would rather use the term “physician-hastened death.”35
The Committee prefers the term “medical assistance in dying” to “physician-assisted
dying”, as it reflects the reality that health care teams, consisting of nurses, pharmacists,
and other health care professionals, are also involved in the process of assisted dying.
The Committee recommends that “medical assistance in dying” (MAID) be used in any
future legislation on this topic, and it is also the term that the Committee will use
throughout this report.
With respect to the terms “grievous and irremediable,” some witnesses suggested
to the Committee that they should be defined in legislation,36 while other witnesses felt
that this was unnecessary.37 Maureen Taylor, Co-Chair of the Provincial-Territorial Expert
Advisory Group on Physician-Assisted Dying stated that “grievous” should be defined as

32

Civil Code of Quebec, An Act respecting end-of-life care, c. S-32.0001, s. 3(6).

33

PDAM, Evidence, 18 January 2016, 1405 (Joanne Klineberg, Department of Justice).

34

External Panel Report.

35

PDAM, Evidence, 27 January 2016, 1720 (Dr. Monica Branigan, Canadian Society of Palliative Care Physicians);
A Network of BC Physicians, Submission to the Special Joint Committee on Physician-Assisted Dying.

36

See for example, PDAM, Evidence, 4 February 2016, 1925 (Michael Bach, Canadian Association for
Community Living); A Network of BC Physicians; Daniel Santoro and Dr. Althea Burrell, Submission to
Special Joint Committee on Physician-Assisted Dying, received 27 January 2016.

37

See for example PDAM, Evidence, 1 February 2016, 1100 (Grace Pastine, Litigation Director, British
Columbia Civil Liberties Association); PDAM, Evidence, 2 February 2016, 1920 (Dr. Douglas Grant, Nova
Scotia College of Physicians and Surgeons); PDAM, Evidence, 4 February 2016.

10

“very severe” or “serious.”38 The Canadian Medical Association had a similar definition
(“serious or severe”), and stated that “irremediable” should be defined as “not able to be
put right or cured.”39 Jocelyn Downie, a professor at Dalhousie University, and David
Baker, a lawyer practising at Bakerlaw, both of whom presented draft legislation on MAID
to the Committee, had a number of terms defined in their respective bills, including
“grievous and irremediable.”40 The Ontario College of Physicians and Surgeons has
defined “grievous” as “a legal term that applies to serious, non-trivial conditions that have a
significant impact on the patient’s well-being,” and “irremediable” as “a broad term
capturing both terminal and non-terminal conditions.”41 The Alberta and Manitoba colleges
of physicians and surgeons have also defined “grievous and irremediable” in their
respective policies.42
The Committee agrees with the witnesses who said the terms “grievous and
irremediable” do not need to be defined beyond what is set out in Carter, and notes that
the Court stated that “irremediable … does not require the patient to undertake treatments
that are not acceptable to the individual.”43 We believe that these terms are sufficiently well
understood to operate without further statutory definition and recommend:
RECOMMENDATION 1
That the terms relating to medical assistance in dying do not require
further statutory definition.
ELIGIBILITY CRITERIA FOR MEDICAL ASSISTANCE IN DYING
A. Condition
The Supreme Court of Canada’s declaration in Carter allows MAID where there is
“a grievous and irremediable medical condition (including an illness, disease or disability)
that causes enduring suffering that is intolerable to the individual in the circumstances of
his or her condition.”44

38

PDAM, Evidence, 26 January 2016, 1835 (Maureen Taylor, Co-Chair of the Provincial-Territorial Expert
Advisory Group on Physician-Assisted Dying).

39

PDAM, Evidence, 27 January 2016, 1730 (Dr. Cindy Forbes, President, Canadian Medical Association).

40

PDAM, Evidence, 28 January 2016, 1845 (Jocelyn Downie, As an Individual); Submission to the Committee,
Presentation to Special Joint Committee on Physician Assisted Dying (David Baker, Trudo Lemmens,
Gilbert Sharpe), 28 January 2016.

41

College of Physicians and Surgeons of Ontario, Interim Guidance on Physician-Assisted Death,
January 2016.

42

College of Physicians and Surgeons of Alberta, Advice to the Profession: Physician-Assisted Death; College
of Physicians and Surgeons of Manitoba, Standards of Practice for Physician-Assisted Death.

43

Carter, 2015, para. 147.

44

Ibid.

11

There was a strong consensus in the testimony and briefs that there should be no
list of included conditions.45
1. Terminal Illness as a Requirement
Witnesses diverged in their interpretation of the Carter decision and its implications
for future legislation. Some witnesses said that only individuals with a terminal diagnosis
should be able to access MAID while others said that Carter clearly did not include
such a requirement. Prof. Hogg argued that, while it was not impossible for Parliament
to require that the condition be terminal, such a law would be more susceptible to
constitutional challenge.46
Imam Sikander Hashmi, representing the Canadian Council of Imams, argued
that MAID be limited to individuals “in an advanced state of irreversible decline” and
Margaret Somerville, professor at McGill University, expressed the view that only
individuals with less than four weeks to live should qualify.47 In contrast, the External Panel
stated that Carter did not require a terminal diagnosis.48 Professor Downie stated:
[Terminal illness] was not included by the Supreme Court in Carter. It is too vague and
49
indeterminate. It is arbitrary and it has no moral justification as a barrier to access.

A brief from the Centre for Inquiry Canada said that limiting MAID to terminally ill
individuals, “would not fully respect the Court’s decision and the value of individual
autonomy that underpins it.”50
The Committee agrees with the External Panel and does not interpret Carter as
limiting MAID to terminally ill individuals. Furthermore, limiting MAID in this way would
result in Canadians with grievous and irremediable conditions faced with enduring and
intolerable suffering having to continue suffering against their will. For these reasons, the
Committee recommends:

45

See, for example, PDAM, Evidence, 3 February 2016, 1700 (Vyda Ng, Executive Director, Canadian
Unitarian Council); Dying with Dignity Canada, 7 Legislative Principles for a Patient-Centred Approach to
Physician-Assisted Dying, submission to the Committee.

46

PDAM, Evidence, 25 January 2016, 1255 (Hogg).

47

PDAM, Evidence, 3 February 2016, 1825 (Imam Sikander Hashmi, Spokesperson, Canadian Council of
Imams); PDAM, Evidence, 4 February 2016, 1705 (Margaret Somerville, Professor, McGill University, as an
Individual). Also see, for example, PDAM, Evidence, 4 February 2016, 1925 (Bach); and Canadian Society
of Palliative Care Physicians, Submission to Special Joint Committee on Physician-Assisted Dying,
submission to the Committee dated 27 January 2016, pp. 3-4.

48

External Panel on Options for a Legislative Response to Carter v. Canada, Consultations on Physician
Assisted Dying Summary of Results and Key Findings: Final Report, 15 December 2015, p. 57. Also see, for
example, PDAM, Evidence, 25 January 2016, 1240 (Jean-Pierre Ménard, Lawyer, Barreau du Québec).

49

PDAM, Evidence, 28 January 2016, 1845 (Downie).

50

Centre for Inquiry Canada, written submission to the Committee, 1 February 2016, p. 4.

12

RECOMMENDATION 2
That medical assistance in dying be available to individuals with
terminal and non-terminal grievous and irremediable medical conditions
that cause enduring suffering that is intolerable to the individual in the
circumstances of his or her condition.
2. Mental Illness
Because the individuals that brought the case in Carter did not have mental health
issues, the Court made no pronouncement with respect to MAID and psychiatric
conditions. Jeanette Ettel, Senior Counsel, Human Rights Law Section at the Department
of Justice, told the Committee that it was open to the Committee to consider whether
to include psychiatric illnesses in the conditions that could result in a right to MAID.51
As was the experience of the External Panel, the Committee heard widely diverging
views on how to address mental health in the context of MAID. Benoît Pelletier, member of
the External Panel and an expert in constitutional law noted that the External Panel
identified greater support from Canadians for MAID in the context of a physical illness
but that, prima facie, the Carter criteria would also apply to psychiatric conditions.52
Professor Downie and others supported this position:
[M]ental illness should not be an exclusion criterion. It was not excluded by the Supreme
Court, and not all individuals with mental illness are incompetent. Physicians already
routinely determine whether someone is competent, even when they have a mental illness.
Furthermore, the suffering that can accompany mental illness can be as excruciating as any
suffering that can accompany physical illness. Finally, I would argue that excluding
53
individuals on the basis of mental illness would violate the charter.

A number of witnesses and submissions expressed concern about mental illness in
the context of MAID.54 Dr. K. Sonu Gaind, President of the Canadian Psychiatric
Association, outlined some of the challenges that will need to be addressed:
In terms of what is “irremediable”, careful consideration needs to be given about what this
means in the context of mental illness. Irremediable, of course, cannot simply mean
incurable. Many conditions in psychiatry and medicine are considered chronic and not
55
curable, but things may be done to remediate or improve the situation.

51

PDAM, Evidence, 18 January 2016, 1530 (Jeanette Ettel, Senior Counsel, Human Rights Law Section,
Department of Justice).

52

PDAM, Evidence, 26 January 2016, 1750 (Benoît Pelletier, Member, External Panel on Options for a
Legislative Response to Carter v. Canada).

53

PDAM, Evidence, 28 January 2016, 1850 (Downie). See also, for example, Centre for Inquiry, p. 4 and
PDAM, Evidence, 26 January 2016, 1900 (Taylor).

54

See, for example, Living with Dignity, Recommendations for the Special Joint Committee on PhysicianAssisted Dying, p. 3, written submission to the Committee; Derek B.M. Ross & Johnathan R. Sikkema,
Christian Legal Fellowship, Submission of the Christian Legal Fellowship to the Special Joint Committee on
Physician-Assisted Dying, 1 February 2016, p. 4.

55

PDAM, Evidence, 27 January 2016, 1935 (Dr. K. Sonu Gaind, President, Canadian Psychiatric Association).

13

Dr. Tarek Rajji, Chief of Geriatric Psychiatry at the Centre for Addiction and Mental
Health, told the Committee that:
[M]ental illness may be grievous to an individual, and symptoms can cause enduring
psychological and sometimes physical suffering. However, suffering should not be equated
with an irremediable nature, and the lack of inevitable and predictable death by natural
history provides us with an opportunity to deliver recovery-based treatment.
[P]eople with mental illness may be vulnerable to the impact of the social determinants of
health. They may live in poverty, have poor housing, and lack social support. These
circumstances may exacerbate suffering and a person's perception that their illness is
irremediable … within a clinical recovery-based environment, there is always the potential
56
for mental illness to be remediable.

In response, Professor Downie reminded the Committee of the following aspect of
the Carter judgment:
“Irremediable”, it should be added, does not require the patient to undertake treatments that
57
are not acceptable to the individual.

The Committee recognizes that there will be unique challenges in applying the
eligibility criteria for MAID where the patient has a mental illness, particularly where such
an illness is the condition underlying the request. However, where a person is competent
and fits the other criteria set out by law, the Committee does not see how that individual
could be denied a recognized Charter right based on his or her mental health condition.
Furthermore, we do not understand the Carter decision to exclude mental illnesses.
Any individual applying for MAID would need to satisfy all the criteria, including
irremediability and capacity. As several witnesses reminded the Committee, health
professionals will need to strike an appropriate balance between the rights of all
Canadians to access this constitutionally protected right, and the protection of those
vulnerable persons who might be coerced into requesting MAID. Cases involving mental
illness may prove challenging to address for health care practitioners, but the Committee
has faith in the expertise of Canadian health care professionals to develop and apply
appropriate guidelines for such cases. The difficulty surrounding these situations is not a
justification to discriminate against affected individuals by denying them access to MAID.
The Committee expects that cases where the underlying condition is a mental health
condition will be rare, as is the case in other jurisdictions that have legalized MAID.58
A more detailed discussion of appropriate safeguards can be found below. The Committee
therefore recommends:

56

PDAM, Evidence, 3 February 2016, 1805 (Dr. Tarek Rajji, Chief, Geriatric Psychiatry, Centre for Addiction
and Mental Health).

57

Carter, 2015, para. 127.

58

Regarding Belgium, for example: neuropsychiatric disorders were 1.2% of cases in 2004/05, 2.8 % (or 58 cases)
in 2010/11 and 3.7 % (or 67 cases) in 2013/14 according to Trudo Lemmens, Why Canada Should Avoid A
Belgian-Style Regulatory Regime for Physician Assisted Dying, Memorandum for the Special Joint Committee
on Physician-Assisted Dying, written submission to the Committee, p. 6.

14

RECOMMENDATION 3
That individuals not be excluded from eligibility for medical assistance
in dying based on the fact that they have a psychiatric condition.
B. Suffering
The Supreme Court did not specify in Carter whether suffering is limited to physical
suffering. Witnesses voiced different opinions, with some advocating for the inclusion of
physical suffering only and others recommending that psychological suffering be included
as well.59 The Committee received at least one submission arguing that mental suffering is
as severe as physical suffering and should not be excluded from MAID.60 In addition, the
Supreme Court referred to suffering “from the knowledge that they lack the ability to bring
a peaceful end to their lives at a time and in a manner of their own choosing,” which would
be psychological in nature.61 The requirements that the suffering is enduring and
intolerable to the person are safeguards to ensure that someone in temporary or minor
pain does not make a rash decision to die. In addition, the suffering must relate to a
grievous and irremediable condition. Where mental illness is an issue, Dr. Gaind noted that
what is considered enduring and intolerable suffering may be affected by the mental illness
itself.62 The Committee has confidence that health care professionals will proceed
cautiously in such cases, as in all cases, and ensure that all criteria are satisfied before
accepting a request for MAID and recommends:
RECOMMENDATION 4
That physical or psychological suffering that is enduring and intolerable
to the person in the circumstances of his or her condition should be
recognized as a criterion to access medical assistance in dying.
C. Informed Consent
There appeared to be a general consensus in the testimony and briefs that the
request for MAID must come from the patient in a voluntary manner and after he or she
has received sufficient information to make an informed choice. The concern voiced most
often during the hearings was about ensuring genuine consent to MAID. All witnesses and
authors of briefs were concerned about the protection of vulnerable individuals, though the
proposed solutions varied considerably. Prof. Pelletier explained:
As for vulnerability, it is, of course, a complex and subtle concept. Although the term
“vulnerable populations” has been used to describe certain identifiable groups in society, the
panel heard from many sources that vulnerability is not simply a characteristic of an

59

See, for example, PDAM, Evidence, 4 February 2016, 1705 (Somerville), regarding limiting MAID to physical
suffering; and PDAM, Evidence, 1 February 2016, 1155 (Wanda Morris, Dying With Dignity), regarding
psychological suffering.

60

Marcia Hogan, Brief to the Joint Committee on Physician Assisted Dying, submission to the Committee, p. 2.

61

Carter, 2015, para. 14.

62

PDAM, Evidence, 27 January 2016, 1935 (Gaind).

15

individual or group, but rather is a state that any one of us could be in under certain
circumstances. We heard that sometimes people are made vulnerable in particular contexts
and situations when personal autonomy, status, wealth, and well-being are compromised in
any significant way.
What this means in the context of physician-assisted dying is that all persons are potentially
vulnerable. Being vulnerable does not disqualify a person who is suffering intolerably from
seeking an assisted death, but it does put that person at risk of being induced to request a
death that he or she does not desire. This is the risk that the Supreme Court called upon
63
Parliament and provincial legislatures to address in a complex regulatory scheme.

Jennifer Gibson, Co-Chair of the Provincial-Territorial Expert Advisory Group on
Physician-Assisted Dying, suggested that almost all patients considering MAID would
be vulnerable, with some facing particular vulnerabilities as a result of issues such as
mental illness or social conditions. She suggested that, rather than vulnerability being a
barrier to access, the process should take these vulnerabilities into account through
safeguards and that training for health care professionals be offered.64 Biomedical
ethics Professor Carolyn Ells of McGill University and others felt that current standards
and processes for establishing consent should be used.65 Ms. Klineberg from the
Department of Justice said that:
It was because the court had expressed confidence that Canadian physicians can assess
both mental competence and the vulnerability of a person at the individual level that it felt the
absolute prohibition was unconstitutional and you could provide physician-assisted dying to
66
those who wanted it while protecting the vulnerable.

Nonetheless, many witnesses called for further supports for individuals who may
be vulnerable as a result of poverty and mental health issues, and identified the need
for adequate palliative care and for patients to be provided information about these
options in order to make MAID a genuine choice.67 Some witnesses, such as the
Coalition for HealthCARE and Conscience, felt that no safeguards would be sufficient to
protect the vulnerable.68 In contrast, Linda Jarrett, a member of the Disability Advisory
Council of Dying with Dignity, told the Committee:

63

PDAM, Evidence, 26 January 2016, 1740 (Pelletier).

64

PDAM, Evidence, 26 January 2016, 1915 (Gibson).

65

PDAM, Evidence, 2 February 2016, 1745 (Carolyn Ells, Associate Professor, Medicine, Biomedical Ethics
Unit, McGill University, As an Individual). See also, for example, PDAM, Evidence, 1 February 2016, 1105
(Josh Paterson, Executive Director, British Columbia Civil Liberties Association).

66

PDAM, Evidence, 18 January 2016, 1530 (Klineberg).

67

See, for example, PDAM, Evidence, 28 January 2016, 1940 (David Baker, Bakerlaw, As an Individual);
PDAM, Evidence, 28 January 2016, 1750 (Dean Richert, Co-Chair, Ending of Life Ethics Committee,
Council of Canadians with Disabilities); PDAM, Evidence, 2 February 2016, 1815 (Sharon Baxter, Executive
Director, Canadian Hospice Palliative Care Association).

68

PDAM, Evidence, 3 February 2016,1705 (Cardinal Thomas Collins, Archbishop, Archdiocese of Toronto,
Coalition for HealthCARE and Conscience).

16

The members of our disability advisory council strongly feel that the law needs to strike a
balance to protect vulnerable people from having an assisted death they don't really want
and … to ensure access to assisted death for those who do have an enduring wish for it….
Our diseases and disabilities have robbed us of much, and I ask you, do not add to this
69
burden by compromising our choices and our autonomy.

The Committee understands the concerns with respect to both protecting vulnerable
persons and respecting their autonomy, and is recommending a number of safeguards
which are both described throughout this report and summarized in the introduction.
As noted by the Supreme Court of Canada in Carter:
The evidence supports … [the trial judge’s] finding that a properly administered regulatory
70
regime is capable of protecting the vulnerable from abuse or error.

The Court also noted that “[w]e should not lightly assume that the regulatory regime will
function defectively, nor should we assume that other criminal sanctions against the taking
of lives will prove impotent against abuse.”71
As is outlined in further detail below, the Committee endorses recommendations to
provide more supports and services to reduce the vulnerabilities of those seeking MAID.
At the same time, issues such as poverty and social isolation are general societal and
systemic problems that will, unfortunately, not be resolved overnight. Safeguards and
oversight are the best way to ensure informed consent and voluntariness while not
refusing access to individuals who may be experiencing intolerable and enduring suffering.
The process of evaluating a request for MAID must include consideration by the relevant
health care provider(s) of any factors affecting consent, such as pressure from others,
feelings of being a burden or lack of supports. Training will also be crucial to ensure that
such factors are identified appropriately. The Committee fully agrees with the statement of
Rhonda Wiebe, Co-Chair of the Ending of Life Ethics Committee of the Council of
Canadians with Disabilities who said:
[T]here are many social, economic, and other environmental factors that increase the
vulnerability of persons with disabilities, especially the newly disabled. Careful scrutiny must
take place to ensure that there aren't other remedies, besides death, that will lessen the
72
suffering and indignity of these people.

At the same time, though there may be cases where vulnerable persons are
affected by external factors to want to die, the criteria should not be overly restrictive, as
the Hon. Steven Fletcher, former Member of Parliament reminded the Committee:

69

PDAM, Evidence, 28 January 2016, 1740 (Linda Jarrett, Member’ Disability Advisory Council, Dying with
Dignity Canada).

70

Carter, 2015, para. 3.

71

Ibid, para. 120.

72

PDAM, Evidence, 28 January 2016, 1755 (Rhonda Wiebe, Co-Chair of the Ending of Life Ethics Committee
of the Council of Canadians with Disabilities).

17

Having someone suffer, starving themselves to death, or being in pain or in terrible suffering,
down the hall or down the street at the seniors residence or in a hospital or at home, having
them live in pain and terror — it doesn't make my life better as a Canadian with a disability.
73
It just makes me sad.

Cases must be assessed on an individual basis to ensure the appropriate balance
between protection of the vulnerable and respect for autonomy. The Committee believes
that the safeguards and oversight measures outlined below, as well as other measures
that the provinces and regulators of health care professionals will develop, will ensure that
individuals who do not really want to die are identified, that the vulnerable are protected
and that individuals who satisfy the criteria and with a genuine and enduring desire to die
are provided with MAID to end their suffering. The Canadian Medical Association’s
recommendations are reassuring on this point, as one of the foundational principles they
include is that:
All the requirements for informed consent must clearly be met, including the requirement that
the patient be capable of making that decision, with particular attention to the context of
potential vulnerabilities and sensitivities in end-of-life circumstances. Consent is seen
as an evolving process requiring physicians to communicate with the patient in an ongoing
74
manner. [bold added]

In addition, the Committee notes that section 241(a) of the Criminal Code, which
addresses counselling to commit suicide, remains in place should a patient be faced with
pressure from family or others to request MAID.
The Committee strongly believes that to protect vulnerable individuals, only
individuals who are able to provide informed consent to MAID should have access to it.
The Committee therefore recommends:
RECOMMENDATION 5
That the capacity of a person requesting medical assistance in dying
to provide informed consent should be assessed using existing
medical practices, emphasizing the need to pay particular attention
to vulnerabilities in end-of-life circumstances.
D. Age
The Carter decision dealt with plaintiffs who were adults, so no decision was made
with regard to minors’ eligibility for MAID. However, as Prof. Pelletier made clear,
Parliament can choose to allow minors to access MAID.75 In response to a comment
stating that it was up to the Committee to determine what the age of consent would be in
relation to a specific offence, Prof. Hogg replied:

73

Ibid., 1800 (Hon. Steven Fletcher, as an Individual).

74

Canadian Medical Association, Principles-based Recommendations for a Canadian Approach to Assisted
Dying, written submission to the Committee, p. 3.

75

PDAM, Evidence, 26 January 2016, 1805 (Pelletier).

18

Yes, I think that's right. The Supreme Court, in its order, spoke of a “competent adult
person”. I don't think it would be open to you, for example, to have 16 as an age of consent
for this purpose, because that would not be a competent adult person. Between 18 and 21,
76
I would think you would have some leeway within the word “adult“ to decide that.

Certain witnesses, such as the Nova Scotia College of Physicians and Surgeons, chose
not to take a position on this issue, simply asking for greater clarity to be provided.77 Some
witnesses who appeared before the Committee and the External Panel recommended that
legislation define an age below which MAID would not be available (generally 18 but one
submission suggested as old as 25).78 Other witnesses wanted all individuals who are
competent to make the decision to be eligible for MAID.79 One witness also flagged the
need to consider the suffering of children who are not competent, though did not go so far
as to suggest including them in any MAID regime.80 To date, Belgium and the Netherlands
are the only two jurisdictions that allow minors access to MAID.81
Stakeholders who prefer competency-based criteria, such as the Provincial/
Territorial Expert Advisory Group and the British Columbia Civil Liberties Association, argue
that the trend is toward increased recognition of the competence of minors in health care
decision making and that age limits are arbitrary.82 Prof. Pelletier stated that suffering is
suffering, regardless of age and that there is a risk that the provisions may be challenged
on the basis of section 15 of the Charter (equality rights) if minors are excluded.83
The Canadian Paediatric Society advocated against including minors, regardless of
competence, in any MAID regime. The organization made this argument for a number of
reasons, including the lack of evidence before the court in Carter regarding minors; the
fact that an age limit is not arbitrary: and the lack of social consensus with respect to MAID
for minors. The organization also rejected the idea that a constitutional challenge by
excluded minors would clearly be successful. It suggested addressing whether to allow
minors to access MAID at a later date, after there has been time to gather data, as was the
case in Belgium which legalized minors’ access to MAID in 2014, 12 years after adults
were granted access.84

76

PDAM, Evidence, 25 January 2016, 1240 (Hogg).

77

PDAM, Evidence, 2 February 2016, 1940 (Grant).

78

See, for example, PDAM, Evidence, 4 February 2016, 1640 (Carmela Hutchison, President of DisAbled
Women’s Network of Canada) (DAWN); PDAM, Evidence, 4 February 2016, 1920 (Bach). Regarding the
suggestion of age 25, see Colette Squires, Physician Assisted Dying Public Consultation, January 30, 2016
in Langley, B.C., submission to the Committee, p. 4.

79

Provincial-Territorial Report, Recommendation 17. Also see, for example, PDAM, Evidence, 2 February
2016, 1735 (Dr. Derryck Smith, Chair of Physicians Advisory Council, Dying with Dignity Canada).

80

PDAM, Evidence, 2 February 2016, 1735 (Smith).

81

PDAM, Evidence, 18 January 2016, 1415 (Klineberg).

82

PDAM, Evidence, 26 January 2016, 1835 (Gibson); PDAM, Evidence, 1 February 2016, 1100 (Pastine).

83

PDAM, Evidence, 26 January 2016, 1810 (Pelletier).

84

PDAM, Evidence, 3 February 2016 (Mary Shariff, Associate Professor of Law and Associate Dean
Academic, University of Manitoba, Canadian Paediatric Society).

19

In contrast, Dr. Derryck Smith, Chair of the Physicians Advisory Council of Dying
with Dignity Canada who was head of psychiatry at Vancouver’s Children’s Hospital for
30 years, argued for a competence-based approach, saying:
I have worked with many teenagers over the years and I have worked with a number who
have been facing death, and I think they would be competent in the legal sense to consent
to physician-assisted dying as they would be legally competent to agree to other kinds of
medical care.
…Why would we want teenagers to suffer, but we're prepared to relieve adults of suffering?

85

Other witnesses such as Margaret Birrell, President of the Alliance of People with
Disabilities Who Are Supportive of Legal Assisted Dying Society, and Dr. John Soles,
President of the Society of Rural Physicians of Canada, were open to minors possibly
having access, but felt that this should not be allowed at the present time.86 Dr. Hartley
Stern, Executive Director and CEO of the Canadian Medical Protective Association, said
that if “mature minors” are to be entitled to MAID, clarification is needed as to how their
competency will be assessed.87 Quebec’s An Act respecting end-of-life care restricts
“medical aid in dying” to “a person of full age.”88
The Committee understands the concerns of many witnesses regarding the
capacity of minors to understand the implications of such a serious decision. However, it is
important to remember, as noted in the External Panel’s report, that the Supreme Court
has stated that minors have a right “to a degree of decision-making autonomy that is
reflective of their evolving intelligence and understanding.”89 Allowing competent minors
access to MAID would not be eliminating the requirement for competence. Given existing
practices with respect to mature minors in health care90 and the obvious fact that minors
85

PDAM, Evidence, 2 February 2016, 1815 (Smith).

86

PDAM, Evidence, 4 February 2016, 1730 (Margaret Birrell, President, Alliance of People with Disabilities
Who Are Supportive of Legal Assisted Dying Society); 4 February 2016, 1900 (Dr. John Soles, President,
Society of Rural Physicians of Canada).

87

PDAM, Evidence, 4 February 2016, 1915 (Dr. Hartley Stern, Executive Director and CEO, The Canadian
Medical Protective Association).

88

An Act respecting end-of-life care, section 5.

89

A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, para. 69.

90

In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the Supreme Court of Canada
discusses the ability of minors to consent to medical treatment in the context of protective legislation that
allows a court to authorize treatment for a child when it deems it to be in the child’s best interest. At para. 46,
Justice Abella (for the majority) states:
The latitude accorded to adults at common law to decide their own medical treatment had historically
narrowed dramatically when applied to children. However the common law has more recently abandoned
the assumption that all minors lack decisional capacity and replaced it with a general recognition that
children are entitled to a degree of decision-making autonomy that is reflective of their evolving intelligence
and understanding. This is known as the common law “mature minor” doctrine. As the Manitoba Law Reform
Commission noted, this doctrine is “a well-known, well-accepted and workable principle which … raise[s]
few difficulties on a day-to-day basis” (Minors’ Consent to Health Care (1995), Report #91, at p. 33). The
doctrine addresses the concern that young people should not automatically be deprived of the right to make
decisions affecting their medical treatment. It provides instead that the right to make those decisions varies
in accordance with the young person’s level of maturity, with the degree to which maturity is scrutinized
intensifying in accordance with the severity of the potential consequences of the treatment or of its refusal.

20

can suffer as much as any adult, the Committee feels that it is difficult to justify an outright
ban on access to MAID for minors. As with issues of mental health, by instituting
appropriate safeguards, health care practitioners can be relied upon to identify appropriate
cases for MAID and to refuse MAID to minors that do not satisfy the criteria.
The Committee acknowledges that a competent mature minor who has a grievous
and irremediable medical condition should not be forced to endure intolerable suffering.
Moreover, there are serious questions whether a restriction of the right to MAID only to
competent adults would be consistent with the Charter. However, the Committee realizes
that witnesses and briefs received were of differing opinions on the subject of extending
the right to MAID to mature minors, and that these differences reflect a divergence of
opinion among the Canadian public. After reflecting on the issue, the Committee
recommends the following:
RECOMMENDATION 6
That the Government of Canada implement a two-stage legislative
process, with the first stage applying immediately to competent adult
persons 18 years or older, to be followed by a second stage applying
to competent mature minors, coming into force at a date no later than
three years after the first stage has come into force; and
That the Government of Canada immediately commit to facilitating a
study of the moral, medical and legal issues surrounding the concept of
“mature minor” and appropriate competence standards that could be
properly considered and applied to those under the age of 18, and
that this study include broad-based consultations with health
specialists, provincial and territorial child and youth advocates, medical
practitioners, academics, researchers, mature minors, families, and
ethicists before the coming into force of the second stage.
E. Advance Request
The Carter decision dealt with plaintiffs who would remain competent while they
faced significant physical decline. It did not address whether an individual who is not
competent at the time of death could identify the circumstances in which he or she would
choose MAID in advance. With respect to advance requests for MAID, witnesses and
briefs outlined diverging opinions, from recommending not to allow such requests, to
allowing them only after an individual is diagnosed, to allowing advance requests to be
written prior to any illness. There was general agreement however that, if requests are to
be allowed in advance, the individual must be competent at the time the advance request
is drafted.
An advance request could be considered in three different situations:

where a person’s request has been accepted but the individual loses
competence before MAID takes place;

21

where a person has been diagnosed with a grievous and irremediable
condition but is not yet experiencing enduring and intolerable suffering; and

prior to diagnosis.

Professor Downie recommended that advance requests be permitted in the first
two cases, but not the third. She argued that advance requests prevent the suffering of
someone who has been approved for MAID but then loses competence and must continue
to suffer. It also prevents individuals from ending their lives earlier than they would
otherwise in order to avoid losing competence before the suffering becomes intolerable,
something which was a major factor in the Carter case.91 Finally, an advance request
allows the process to be undertaken before the suffering is enduring and intolerable.
Otherwise, the person would have to continue to endure the suffering during the
processing of the request and any waiting period.92 Linda Jarrett and the Hon. Steven
Fletcher, both living with disabilities, also told the Committee they believed advance
requests should be respected.93 Other witnesses also voiced support for advance
requests.94 Wanda Morris, outgoing CEO of Dying with Dignity Canada, argued in a similar
vein to Professor Downie:
In their decision, the Supreme Court justices wrote that to force someone to choose
between undergoing a premature, perhaps violent, death and enduring prolonged suffering
is a cruel choice. We submit that unless the committee recommends that informed consent
be allowed by advance consent, the injustice will continue.
Nowhere does this play out more than around the issue of dementia.…
I think that what we do will actually be life-affirming if we are able to provide a clear advance
95
consent mechanism.

Ms. Morris explained that objective, verifiable criteria must be included in any such
request to assist a health care team in assessing whether the criteria outlined in the
advance request have been satisfied. As examples, she listed being bedridden, being
unable to feed, wash or shave oneself or being unable to speak for 30 days or more.
The same safeguards for a contemporaneous request must be in place for an advanced
request to confirm informed consent and capacity.96

91

Carter, 2015, para. 57-58.

92

PDAM, Evidence, 28 January 2016, 1850 (Downie).

93

PDAM, Evidence, 28 January 2016, 1735 (Jarrett); 1805 (Fletcher).

94

See, for example, PDAM, Evidence, 1 February 2016, 1105 (Paterson); PDAM, Evidence, 4 February 2016,
1655 (Angus Gunn, Counsel, Alliance of People with Disabilities Who Are Supportive of Legal Assisted
Dying Society); Centre for Israel and Jewish Affairs, Brief for the Special Joint Committee on PhysicianAssisted Dying, submission to the Committee, p. 4-5.

95

PDAM, Evidence, 1 February 2016, 1120 (Morris).

96

Ibid., 1155.

22

Jean-Pierre Ménard, representing the Barreau du Québec, noted that the panel of
legal experts appointed by Quebec’s government, of which he was a member,
recommended allowing advance requests but that the legislation adopted in Quebec
does not permit them for MAID. He explained that there were a number of questions that
were raised about how to assess competence at the time an advance request is made:
whether the individual would fully understand the decisions being made; how to know
whether the individual had changed his or her mind; and whether a third party could act
against the interests of the patient. He concluded that there was much debate, with valid
arguments on both sides, and that a decision was made in Quebec to prioritize protection
of the vulnerable.97
Jay Cameron from the Justice Centre for Constitutional Freedoms expressed
concerns that advance requests could result in abuse if a patient becomes incompetent
and that it would not be possible to verify if the request was made under duress. He also
argued that it is too difficult to know how one will feel once in a changed state, such as
when one is experiencing the symptoms of dementia.98 Michael Bach, Executive
Vice-President of the Canadian Association for Community Living, argued that the
requirement for the suffering of the patient to be intolerable “in the circumstances of his or
her condition” bars the use of advance requests.99 Similarly, Prof. Trudo Lemmens from
the Faculty of Law and Dalla Lana School of Public Health at the University of Toronto
expressed concern in written submissions after his appearance before the Committee.
He felt that someone with dementia who is still enjoying life could end up dying by MAID
because he or she met the criteria related to suffering, such as not recognizing family
members, that was included in his or her advance request for MAID.100
Dr. Jeff Blackmer, Vice-President, Medical Professionalism at the Canadian Medical
Association noted that the organization had not consulted its membership on the issue of
advance requests because the issue was not addressed in Carter. However, he did say
that implementing advance directives is “incredibly complex and difficult, because it’s
very hard to capture all of the nuances and the specifics of a very complicated medical
condition and intervention.”101 Dr. Douglas Grant, Registrar and CEO of the College of
Physicians and Surgeons of Nova Scotia, without taking a position on whether advance
requests should be permitted, also noted that “a myriad of new issues” would need to be
addressed if such requests were permitted.102

97

PDAM, Evidence, 25 January 2016, 1255 (Ménard).

98

PDAM, Evidence, 1 February 2016, 1205 (Jay Cameron, Barrister and Solicitor, Justice Centre for
Constitutional Freedoms).

99

PDAM, Evidence, 4 February 2016, 1925 (Bach). See also, for example, PDAM, Evidence, 4 February 2016,
1930 (Gerald Chipeur, Lawyer, As an Individual).

100

Trudo Lemmens, Response to Comments Made During the Committee Hearings of January 28, 2016,
2 February 2016, submission to the Committee.

101

PDAM, Evidence, 27 January 2016, 1750 (Blackmer).

102

PDAM, Evidence, 2 February 2016, 1925 (Grant). See also, for example, PDAM, Evidence, 3 February
2016, 1850 (Rajji).

23

The Committee understands these challenges but is deeply concerned that by
excluding individuals who want access to MAID but have lost competence, such
individuals will be left to suffer or end their lives prematurely. This situation was exactly
what the Carter decision sought to avoid. Allowing advance requests also provides comfort
to individuals, reducing their psychological suffering, knowing that their lives will not end in
a way that is against their wishes.103 Limiting the option of advance directives to individuals
who already have a diagnosis makes it easier to ascertain that there was informed
consent. At that point, the person knows more about what he or she may expect in the
future to provide relevant direction in the request. The same safeguards to ensure
competence and consent must be in place for advance requests, and consideration could
be given to additional safeguards. Thought should be given to encouraging and possibly
requiring health care practitioners to communicate regularly with their patients while they
are still competent to ensure that their advance requests continue to reflect their wishes.
The concerns of Dr. Blackmer, Dr. Grant and others will need to be examined as the
system is put in place to minimize the risk of abuse and error, but the Committee is
confident that this can and must be done to ensure the autonomy of Canadians and the
protection of the vulnerable. The Committee therefore recommends:
RECOMMENDATION 7
That the permission to use advance requests for medical assistance in
dying be allowed any time after one is diagnosed with a condition that
is reasonably likely to cause loss of competence or after a diagnosis of
a grievous or irremediable condition but before the suffering becomes
intolerable. An advance request may not, however, be made, prior to
being diagnosed with such a condition. The advance request is
subject to the same procedural safeguards as those in place for
contemporaneous requests.
F. Residency Requirement
Few witnesses discussed the issue of residency as an eligibility requirement for
MAID, either before the External Panel or this committee. Prof. Ells argued for eligibility
based on eligibility for publicly funded health care services in the province or territory
where the request is made. MAID should occur in the context of a patient-physician
relationship and the Committee does not want Canada to become a destination for people
seeking MAID. For this reason, the Committee recommends:
RECOMMENDATION 8
That medical assistance in dying be available only to insured persons
eligible for publicly funded health care services in Canada.

103

Provincial-Territorial Report, p. 31.

24

THE PROCESS INVOLVED IN REQUESTING MEDICAL ASSISTANCE IN DYING
The majority of witnesses noted that the process for applying for MAID should
have built-in safeguards to identify vulnerable individuals and ensure that an individual
meets the eligibility criteria. Witnesses agreed that the request has to come from the
person seeking MAID; the request cannot be made by a substitute decision maker.
The Committee also agrees and wishes to recognize that witness testimony was
invaluable for the Committee’s deliberations and consideration of appropriate safeguards.
There was general agreement that there should be a process appropriately
documenting a person’s request for MAID, that when possible, the request should be
made in writing (with alternatives if a person cannot write) and witnessed by someone who
has no possible conflict of interest. The person should also be given the opportunity to
rescind his or her request. The Committee agrees with these suggestions as well.
The Committee believes that where possible the request should be made in
writing, and that it should be witnessed by two people who have no conflict of interest.
The Committee therefore recommends:
RECOMMENDATION 9
That the Government of Canada work with the provinces and territories
and their medical regulatory bodies to ensure that, where possible, a
request for medical assistance in dying is made in writing and is
witnessed by two people who have no conflict of interest.
A. Conscientious Objection to Participating in Medical Assistance in Dying
The External Panel’s report noted that “the medical profession is divided over the
issue of MAID.”104 Many witnesses who appeared before the Committee, and briefs/
letters that were submitted to the Committee, discussed the extent to which health care
practitioners should be able to refuse to participate in MAID for reasons of conscience.105
No one was of the opinion that a health care practitioner should be obliged to perform
MAID. As the Supreme Court of Canada stated in Carter, “[i]n our view, nothing in the
declaration of invalidity which we propose to issue would compel physicians to provide
assistance in dying.”106
It was argued by some witnesses that strong protections for health care
practitioners who refuse to participate for reasons of conscience need to be put in
place, including the possibility that such protection be established in legislation.107
104

External Panel Report, p. 98.

105

The issue of freedom of conscience of pharmacists was raised by the Canadian Pharmacists Association
(CPhA), PDAM, Evidence, 27 January 2016 (Phil Emberley, Canadian Pharmacists Association).

106

Carter, 2015, para. 132.

107

See for example, PDAM, Evidence, 27 January 2016, 1725 (Branigan); PDAM, Evidence, 3 February 2016,
1905 (Hashmi); 1705 (Collins); Letter to Minister Wilson-Raybould and Minister Philpott, Canadian
Conference of Catholic Bishops, 20 January 2016.

25

Other witnesses were concerned about the effect a practitioner’s refusal to participate in
MAID would have both on the individual who was seeking an assisted death and on the
availability of MAID more broadly. As Vyda Ng from the Canadian Unitarian Council told
the Committee, “[i]t’s very much in keeping with Canadian values to put the needs
and wishes of Canadians ahead of the values of individual doctors and institutions,
and to respect each person’s dignity at the most traumatic period of their lives.”108
Some witnesses and submissions to the Committee recommended that a practitioner who
conscientiously objects to MAID should be required to provide an effective referral or
transfer of care for their patient,109 while some felt that referring the individual to a thirdparty organization should be sufficient.110 Joanne Klineberg from the Department of
Justice noted that provinces and territories “have legislation and policies in relation to the
rights of physicians to refuse to partake in certain types of medical practices, so it is
definitely something that the provinces and territories already are responsible for.”111
In Quebec, a physician must notify a designated individual if he or she refuses to
participate in MAID so that a willing physician may be identified.112
The Committee notes that the Supreme Court of Canada in Carter stated that the
Charter rights of patients and physicians will need to be reconciled.113 The Committee
believes that having health care professionals who conscientiously object to MAID
provide an effective referral for a patient who seeks MAID is an appropriate balancing of
the rights of patients and the conscience rights of physicians. The Committee therefore
recommends:
RECOMMENDATION 10
That the Government of Canada work with the provinces and territories
and their medical regulatory bodies to establish a process that
respects a health care practitioner’s freedom of conscience while at
the same time respecting the needs of a patient who seeks medical
assistance in dying. At a minimum, the objecting practitioner must
provide an effective referral for the patient.
Witnesses and briefs also addressed whether a health care facility should be
permitted to refuse to either provide MAID or to allow MAID to be provided on its premises.
One witness told the Committee that in Quebec, hospices (which the witness stated are
largely privately funded) sought and received an exemption from having to provide

108

PDAM, Evidence, 3 February 2016, 1705 (Ng).

109

See for example, PDAM, Evidence, 26 January 2016, 1900 (Gibson); PDAM, Evidence, 1 February 2016,
1125 (Morris); Rhonda Morison, Submission to the Committee, 30 January 2016.

110

PDAM, Evidence, 1 February 2016, 1105 (Paterson); submission to the Committee, Vivre dans la Dignité,
2016; Ellen Agger, submission to the Committee, 1 February 2016.

111

PDAM, Evidence, 18 January 2016, 1535 (Klineberg).

112

An Act Respecting End-of-Life Care, RSQ c S-32.0001, section 31.

113

Carter, 2015, para. 132.

26

MAID.114 A number of witnesses argued, and the Committee also believes, that if a health
care facility is publicly funded, it must provide MAID.115 The difficulty in transferring a
patient from one facility to another was highlighted.116
The Committee recommends therefore:
RECOMMENDATION 11
That the Government of Canada work with the provinces and territories
to ensure that all publicly funded health care institutions provide
medical assistance in dying.
B. Assessments
A number of witnesses maintained that a person who seeks MAID should be
assessed by at least two physicians to verify that he or she meets the eligibility criteria.117
The External Panel Report explained that “[e]very jurisdiction that has enacted legislation
permitting assisted dying requires that a second physician (often called a ‘consulting
physician’) confirm the attending physician’s approval of a request.”118 Other witnesses
felt that to always require two assessments was unnecessary and could act as a barrier
to access; and that in the scope of normal medical practice, a physician or other health
care provider would seek out a second opinion as needed.119 In situations where MAID
was being sought primarily due to grievous and irremediable suffering caused by a
psychiatric disorder, a consultation with a psychiatrist was recommended by some
witnesses. Other witnesses argued that a vulnerability assessment should occur.120
Carmela Hutchison, President of DisAbled Women’s Network of Canada, told the
Committee that “[w]omen with disabilities need to have had a consultation with peer
support groups before being eligible for physician-assisted death.”121
The Committee strongly believes that having two physicians who are independent
of one another carry out two assessments to ensure that the MAID eligibility criteria are
met will protect people who may be vulnerable. Considering the need to ensure that the
MAID eligibility criteria are met, the Committee recommends therefore:
114

PDAM, Evidence, 2 February 2016, 1845 (Baxter).

115

See for example, PDAM, Evidence, 3 February 2016, 1700 (Ng); British Columbia Humanist Association,
Allow assisted dying for all who choose it: A brief for the Special Joint Committee on Physician-Assisted
Dying, 25 January 2016; Lori Goodwin, submission to the Committee, 30 January 2016.

116

PDAM, Evidence, 2 February 2016, 1850 (Baxter).

117

PDAM, Evidence, 27 January 2016, 1745 (Forbes); 1750 (Birrell); 1900 (Soles) 1 February 2016, 1245
(Dr. Francine Lemire, College of Family Physicians of Canada).

118

External Panel Report, p. 79.

119

See for example, PDAM, Evidence, 28 January 2016, 1920 (Downie).

120

PDAM, Evidence, 4 February 2016, 1950 (Bach); PDAM, Evidence, 28 January 2016, 1750 (Richert). David
Baker and Gilbert Sharpe also note in their draft bill that a patient deemed to be vulnerable should have
counselling.

121

PDAM, Evidence, 4 February 2016, 1640 (Hutchison).

27

RECOMMENDATION 12
That the Government of Canada work with the provinces and
territories, and their medical regulatory bodies to establish that a
request for medical assistance in dying can be carried out only if two
physicians who are independent of one another have determined that
the person meets the eligibility criteria for medical assistance in dying.
C. Who Should Provide Medical Assistance in Dying?
Defining which health care professionals can perform MAID is an essential part of
the discussion, as those involved will require an exemption from the Criminal Code
provisions that currently prohibit MAID (sections 14 and 241(b)). Under Quebec’s An Act
Respecting End-of-Life Care, only physicians may provide what is referred to in the law as
“medical aid in dying.” While for the most part it was agreed that physicians were wellplaced to perform MAID, a number of witnesses advocated for nurse practitioners to be
able to perform MAID, particularly in regions that have limited access to physicians.
It was also recommended that registered nurses and physician assistants, working under
the direction of a physician or a nurse practitioner, be able to provide MAID.122 In such
cases, telemedicine could be used to carry out any physician or specialist consultations.
The Committee shares these concerns regarding access.
Some witnesses suggested the need for a defined and regulated medical subspecialty for those physicians who can practice MAID.123 The Committee is concerned that
such a system would affect access.
Regardless of who performs MAID, the Committee recognizes the need for training,
particularly with respect to identifying vulnerabilities, as was highlighted by a number
of witnesses.124
Taking into account the limited access that people living in rural and remote regions
of Canada may have to a physician, to ensure access to MAID across Canada, the
Committee recommends:

122

See for example PDAM, Evidence, 1 February 2016, 1100 (Paterson); PDAM, Evidence, 2 February 2016,
1745 (Ells); PDAM, Evidence, 3 February 2016, 1755 (Ng); Provincial-Territorial Report.

123

PDAM, Evidence, 4 February 2016, 1705 (Somerville); Constant H. Leung, submission to the Committee:
Physician Hastened Death: Seeking Substantive Safeguards and Effective Access for All Canadians,
1 February 2016.

124

See for example PDAM, Evidence, 25 January 2016, 1110 (Abby Hoffman, Assistant Deputy Minister,
Strategic Policy, Department of Health); PDAM, Evidence, 26 January 2016, 1915 (Gibson); PDAM,
Evidence, 27 January 2016, 1725 (Branigan).

28

RECOMMENDATION 13
That physicians, nurse practitioners and registered nurses working
under the direction of a physician to provide medical assistance
in dying be exempted from sections 14 and section 241(b) of the
Criminal Code.
Pharmacists and other health care practitioners who provide services
relating to medical assistance in dying, should also be exempted from
sections 14 and section 241(b) of the Criminal Code.
The Canadian Nurses Protective Society also recommended amending section
241(a) of the Criminal Code to protect nurses and other health care professionals who
“engage in discussions with patients about end-of-life options and wishes.”125
The majority of testimony focused on physicians. However, it should be understood,
as per the recommendation above, that the Committee supports nurse practitioners,
as well as registered nurses working under the direction of a physician, providing MAID
as well.
D. Waiting or Reflection Period
There was a great deal of variation in submissions with respect to the concept of a
mandatory waiting or “reflection period between the time of the request and the provision
of MAID.”126 Some witnesses felt that a fixed waiting period is required, while others felt
that the waiting period should be flexible, based in part on a person’s prognosis.127
In particular, it was felt that a waiting period should be required in cases of traumatic injury
where a person might still be adjusting to a new condition. Professor Downie claimed
that in such situations, a waiting period would not be helpful anyway, as an individual
would likely not have the capacity to provide an informed consent, and would therefore
not meet the eligibility criteria.128 The External Panel Report noted that “most groups were
of the view that a certain degree of flexibility in the waiting period is necessary.”129
The Committee notes that the waiting periods indicated in various provincial college of
physician and surgeon guidelines vary.
The Committee agrees that any waiting period must be flexible, and firmly believes
that attending physicians are best placed to determine what an appropriate period of
reflection would be, taking into account the patient’s medical condition and any
circumstances that may be unique to that patient. For that reason, the Committee
recommends:

125

Submission, Re Canadian Nurses Protective Society Submission on Physician-Assisted Death.

126

See for example, PDAM, Evidence, 28 January 2016, 1835 (Fletcher).

127

See for example, PDAM, Evidence, 27 January 2016, 1735 (Blackmer); 1720 (Branigan).

128

PDAM, Evidence, 28 January 2016, 1910 (Downie).

129

External Panel Report, p. 90.

29

RECOMMENDATION 14
That the Government of Canada work with the provinces and
territories, and their medical regulatory bodies to ensure that any
period of reflection for medical assistance in dying that is contained in
legislation or guidelines is flexible, and based, in part, on the rapidity
of progression and nature of the patient’s medical condition as
determined by the patient’s attending physician.
E. Prior Review of Medical Assistance in Dying Requests
Some witnesses recommended that to ensure that eligibility criteria are met, the
MAID request should be reviewed by some type of panel or a judge.130 Other witnesses
opposed the idea of any prior review of a request for MAID for a number of reasons,
including that such prior review “is not a safeguard, it is a barrier.”131 The Hon. Steven
Fletcher stated that if there is a panel to approve requests, “you might as well have kept
the law the way it is, because the end result is the same. People would not be able to
access physician-assisted death, they’ll take the actions on their own, and they will suffer
in the interim.”132 The External Panel Report listed three prior review options that were put
forward by stakeholders they consulted: prior judicial authorization, prior authorization by
administrative tribunal, and a MAID panel.133
The Committee agrees that requiring a review by either a panel or a judge would
create an unnecessary barrier to individuals requesting MAID. The Committee
recommends therefore:
RECOMMENDATION 15
That the Government of Canada work with the provinces and
territories, and their medical regulatory bodies to ensure that the
process to regulate medical assistance in dying does not include a
prior review and approval process.
F. Ancillary Considerations
The Committee wishes to highlight the need to ensure that health care
professionals who are acting in good faith are protected from civil liability, as well as the
need to ensure that the estates of individuals whose immediate cause of death was MAID
are protected. The Committee feels strongly that MAID should not affect life insurance.

130

PDAM, Evidence, 4 February 2016, 1700 (Somerville); PDAM, Evidence, 4 February 2016, 1935 (Chipeur);
Baker et al (2016).

131

See for example, PDAM, Evidence, 1 February 2016, 1120 (Morris); PDAM, Evidence, 1 February 2016,
1240 (Lemire).

132

PDAM, Evidence, 28 January 2016, 1810 (Fletcher).

133

External Panel Report, pp. 93-95.

30

These issues need to be considered by the provinces and territories as they move towards
establishing MAID frameworks within their jurisdictions.
Some witnesses noted that Indigenous organizations and communities had not
been involved in discussions relating to MAID, and that such conversations would need to
take place as the legislative process unfolds, taking into account the need to be respectful
of cultural differences and sensitivities to MAID that may be present in communities
afflicted with high rates of suicide.134
The Canadian Pharmacists’ Association highlighted the need to ensure that the
drugs recommended for use in MAID are available in Canada, and not subject to a
manufacturer back order.135 The College of Physicians and Surgeons of Nova Scotia also
cautioned that “there needs to be a robust system for the return of unused medication, and
the college would welcome that this system be mandated through legislation.”136
OVERSIGHT OF THE MEDICAL ASSISTANCE IN DYING PROCESS: REPORTING
REQUIREMENTS AND DATA COLLECTION
Oversight as it was referred to by witnesses can include reviewing specific cases of
MAID, as well as reviewing the MAID framework more broadly. Many witnesses stated that
oversight of MAID was critical, and many expressed the opinion that this oversight should
occur at the federal level. Oversight was seen as desirable for a number of reasons,
including that “it would safeguard good processes,”137 and that it would provide “a panCanadian way of ensuring that everybody has access to this service.”138 Joanne Klineberg
from the Department of Justice explained to the Committee that representations to the
External Panel suggested “that monitoring at a national level would be especially important
because otherwise you could have 13 different bodies monitoring and it may become
especially cumbersome.”139 Prof. Pelletier from the External Panel stated that:
[t]he idea of oversight is quite reassuring for the population. The population likes to know
that there might be a body or different bodies collecting data and analyzing how physicianassisted dying is provided all across Canada, and maybe doing some study on the impact
140
that it has on human rights in general.

134

PDAM, Evidence, 2 February 2016, 1915 (Dr. Alika Lafontaine, Indigenous Physicians Association of
Canada); PDAM, Evidence, 1 February 2016, 1635 (Carrie Bourassa, First Nations University of Canada, as
an individual).

135

PDAM, Evidence, 27 January 2016, 1950 (Carlo Berardi, Canadian Pharmacists Association).

136

PDAM, Evidence, 2 February 2016, 1930 (Grant).

137

PDAM, Evidence, 3 February 2016, 1705 (Ng).

138

PDAM, Evidence, 27 January 2016, 1710 (Branigan).

139

PDAM, Evidence, 18 January 2016, 1445 (Klineberg).

140

PDAM, Evidence, 26 January 2016, 1810 (Pelletier).

31

Professor Downie suggested to the Committee that two levels of oversight would
be needed: a retrospective case review and oversight of the regulatory framework itself.141
Jay Cameron recommended that “federal legislation should mandate a parliamentary
review board every three to five years to review the physician-assisted suicides that have
occurred, and make recommendations for legislative amendments.”142
The Committee recognizes the importance of having an oversight mechanism that
will compile data and analyze medical assistance in dying cases to monitor the operation
of the medical assistance in dying framework and to identify any potential areas that
require refinement. For that reason, the Committee recommends:
RECOMMENDATION 16
That Health Canada lead a cooperative process with the provinces and
territories creating and analyzing national reports on medical
assistance in dying cases, and that such reports be compiled on an
annual basis and tabled in Parliament. Such reports must ensure
respect for the privacy of affected individuals.
RECOMMENDATION 17
That a mandatory statutory review of the applicable federal legislation
be conducted by the appropriate committee(s) of the House of
Commons and of the Senate every four years after the coming into
force of the applicable federal legislation.
IMPROVED SUPPORTS AND SERVICES
The Committee agrees with the witnesses and written submissions that highlighted
the need for improved supports and services to accompany implementation of MAID,
particularly for individuals with disabilities, mental health conditions and/or socioeconomic
challenges.143
A. Support for Indigenous Peoples and Communities
Both Professor Carrie Bourassa, Indigenous Health Studies, First Nations
University of Canada and Dr. Alika Lafontaine, President of the Indigenous Physicians
Association of Canada, emphasized the need to ensure that work in Indigenous
communities is culturally appropriate and recognizes the systemic issues and power
imbalances between patients and health care workers as well.144 Keeping these remarks
in mind, the Committee recommends:

141

PDAM, Evidence, 28 January 2016, 1850 (Downie).

142

PDAM, Evidence, 1 February 2016, 1115 (Cameron).

143

See, for example, 28 January 2016, 1830 (Richert); 1855 (Lemmens).

144

PDAM, Evidence, 1 February 2016, 1715 (Bourassa); PDAM, Evidence, 2 February 2016, 1910 (Lafontaine).

32

RECOMMENDATION 18
That the Government of Canada work with the provinces and
territories, and their medical regulatory bodies to ensure that culturally
and spiritually appropriate end-of-life care services, including palliative
care, are available to Indigenous patients.
B. Palliative Care
Though statistics on access to palliative care are incomplete and out-of-date
according to witnesses, it is fair to say that many Canadians do not have access to
high quality palliative care when they need it. All witnesses who addressed the issue
agreed that Canada could and needs to do more in this area, as does the Committee.
The Committee was pleased to hear from Abby Hoffman, Assistant Deputy Minister,
Strategic Policy, Department of Health, that planned investments in home care services
will include support for palliative care, but the Committee feels that more can be done.145
For this reason, the Committee makes the following recommendations:
RECOMMENDATION 19
That Health Canada re-establish a Secretariat on Palliative and End-ofLife Care; and that Health Canada work with the provinces and
territories and civil society to develop a flexible, integrated model of
palliative care by implementing a pan-Canadian palliative and end-of-life
strategy with dedicated funding, and developing a public awareness
campaign on the topic.
C. Mental Health
As noted above, teasing out the impact of mental health issues on requests for
MAID will be a challenging aspect of implementation for health care practitioners.
Additional services and supports may be needed to assess whether individuals with
psychiatric conditions satisfy the requirements for MAID. For this reason, the Committee
recommends:
RECOMMENDATION 20
That the Government of Canada support the pan-Canadian mental
health strategy, Changing Directions, Changing Lives, developed by
the Mental Health Commission of Canada and work with the provinces,
territories and civil society to ensure that appropriate mental health
supports and services are in place for individuals requesting medical
assistance in dying.

145

PDAM, Evidence, 25 January 2016, 1105 (Hoffman).

33

D. Dementia
Witnesses also outlined the difficulties experienced by individuals with various
forms of dementia and their families, the care required and the low quality of life
experienced by many in the later stages of such conditions. The Alzheimer Society called
for a national dementia strategy to address the needs of our growing population faced with
these conditions.146 The Committee agrees and recommends:
RECOMMENDATION 21
That Health Canada and the Public Health Agency of Canada work with
the provinces, territories and civil society organizations to develop a
pan-Canadian strategy to improve the quality of care and services
received by individuals living with dementia, as well as their families.

146

PDAM, Evidence, 1 February 2016, 1230 (Mimi Lowi-Young, CEO, Alzheimer Society of Canada).

34

LIST OF RECOMMENDATIONS
RECOMMENDATION 1
That the terms relating to medical assistance in dying do not require
further statutory definition. .......................................................................................11
RECOMMENDATION 2
That medical assistance in dying be available to individuals with
terminal and non-terminal grievous and irremediable medical conditions
that cause enduring suffering that is intolerable to the individual in the
circumstances of his or her condition. .................................................................. 13
RECOMMENDATION 3
That individuals not be excluded from eligibility for medical assistance
in dying based on the fact that they have a psychiatric condition. .................... 15
RECOMMENDATION 4
That physical or psychological suffering that is enduring and intolerable
to the person in the circumstances of his or her condition should be
recognized as a criterion to access medical assistance in dying. ..................... 15
RECOMMENDATION 5
That the capacity of a person requesting medical assistance in dying to
provide informed consent should be assessed using existing medical
practices, emphasizing the need to pay particular attention
to
vulnerabilities in end-of-life circumstances. ......................................................... 18
RECOMMENDATION 6
That the Government of Canada implement a two-stage legislative
process, with the first stage applying immediately to competent adult
persons 18 years or older, to be followed by a second stage applying to
competent mature minors, coming into force at a date no later than
three years after the first stage has come into force; and
That the Government of Canada immediately commit to facilitating a
study of the moral, medical and legal issues surrounding the concept
of “mature minor” and appropriate competence standards that could
be properly considered and applied to those under the age of 18,
and that this study include broad-based consultations with health
specialists, provincial and territorial child and youth advocates, medical
practitioners, academics, researchers, mature minors, families, and
ethicists before the coming into force of the second stage. ............................... 21
35

RECOMMENDATION 7
That the permission to use advance requests for medical assistance in
dying be allowed any time after one is diagnosed with a condition that is
reasonably likely to cause loss of competence or after a diagnosis of a
grievous or irremediable condition but before the suffering becomes
intolerable. An advance request may not, however, be made, prior to
being diagnosed with such a condition. The advance request is
subject to the same procedural safeguards as those in place for
contemporaneous requests. ................................................................................... 24
RECOMMENDATION 8
That medical assistance in dying be available only to insured persons
eligible for publicly funded health care services in Canada. .............................. 24
RECOMMENDATION 9
That the Government of Canada work with the provinces and territories
and their medical regulatory bodies to ensure that, where possible, a
request for medical assistance in dying is made in writing and is
witnessed by two people who have no conflict of interest. ................................ 25
RECOMMENDATION 10
That the Government of Canada work with the provinces and territories
and their medical regulatory bodies to establish a process that respects
a health care practitioner’s freedom of conscience while at the same
time respecting the needs of a patient who seeks medical assistance in
dying. At a minimum, the objecting practitioner must provide an
effective referral for the patient. .............................................................................. 26
RECOMMENDATION 11
That the Government of Canada work with the provinces and territories
to ensure that all publicly funded health care institutions provide
medical assistance in dying. ................................................................................... 27
RECOMMENDATION 12
That the Government of Canada work with the provinces and territories,
and their medical regulatory bodies to establish that a request for
medical assistance in dying can be carried out only if two physicians
who are independent of one another have determined that the person
meets the eligibility criteria for medical assistance in dying. ............................. 28

36

RECOMMENDATION 13
That physicians, nurse practitioners and registered nurses working
under the direction of a physician to provide medical assistance
in dying be exempted from sections 14 and section 241(b) of the
Criminal Code.
Pharmacists and other health care practitioners who provide services
relating to medical assistance in dying, should also be exempted from
sections 14 and section 241(b) of the Criminal Code........................................... 29
RECOMMENDATION 14
That the Government of Canada work with the provinces and territories,
and their medical regulatory bodies to ensure that any period of
reflection for medical assistance in dying that is contained in legislation
or guidelines is flexible, and based, in part, on the rapidity of
progression and nature of the patient’s medical condition as determined
by the patient’s attending physician....................................................................... 30
RECOMMENDATION 15
That the Government of Canada work with the provinces and territories,
and their medical regulatory bodies to ensure that the process to
regulate medical assistance in dying does not include a prior review
and approval process. .............................................................................................. 30
RECOMMENDATION 16
That Health Canada lead a cooperative process with the provinces and
territories creating and analyzing national reports on medical assistance
in dying cases, and that such reports be compiled on an annual basis
and tabled in Parliament. Such reports must ensure respect for the
privacy of affected individuals. ............................................................................... 32
RECOMMENDATION 17
That a mandatory statutory review of the applicable federal legislation
be conducted by the appropriate committee(s) of the House of
Commons and of the Senate every four years after the coming
into force of the applicable federal legislation. ..................................................... 32
RECOMMENDATION 18
That the Government of Canada work with the provinces and territories,
and their medical regulatory bodies to ensure that culturally and
spiritually appropriate end-of-life care services, including palliative
care, are available to Indigenous patients. .......................................................... 33

37

RECOMMENDATION 19
That Health Canada re-establish a Secretariat on Palliative and End-ofLife Care; and that Health Canada work with the provinces and
territories and civil society to develop a flexible, integrated model of
palliative care by implementing a pan-Canadian palliative and end-of-life
strategy with dedicated funding, and developing a public awareness
campaign on the topic. ............................................................................................. 33
RECOMMENDATION 20
That the Government of Canada support the pan-Canadian mental
health strategy, Changing Directions, Changing Lives, developed by the
Mental Health Commission of Canada and work with the provinces,
territories and civil society to ensure that appropriate mental health
supports and services are in place for individuals requesting medical
assistance in dying. .................................................................................................. 33
RECOMMENDATION 21
That Health Canada and the Public Health Agency of Canada work with
the provinces, territories and civil society organizations to develop a
pan-Canadian strategy to improve the quality of care and services
received by individuals living with dementia, as well as their families.............. 34

38

APPENDIX A
LIST OF WITNESSES
Organizations and Individuals
Department of Justice

Date

Meeting

2016/01/18

2

2016/01/25

3

2016/01/26

5

2016/01/27

6

Jeanette Ettel, Senior Counsel
Human Rights Law Section
Joanne Klineberg, Senior Counsel
Criminal Law Policy Section

Barreau du Québec
Jean-Pierre Ménard, Lawyer
Marc Sauvé, Director
Research and Legislation Services

Department of Health
Sharon Harper, Manager
Chronic and Continuing Care Division
Abby Hoffman, Assistant Deputy Minister
Strategic Policy

As an individual
Peter Hogg, Scholar in Residence
Blake, Cassels & Graydon LLP

External Panel on Options for a Legislative Response
to Carter v. Canada
Stephen Mihorean, Executive Director
Secretariat
Benoît Pelletier, Member
External Panel

Provincial-Territorial Expert Advisory Group on
Physician-Assisted Dying
Jennifer Gibson, Co-Chair
Maureen Taylor, Co-Chair

Canadian Medical Association
Dr. Jeff Blackmer, Vice-President
Medical Professionalism
Dr. Cindy Forbes, President

Canadian Nurses Association
Josette Roussel, Senior Nurse Advisor
Anne Sutherland Boal, Chief Executive Officer

39

Organizations and Individuals
Canadian Pharmacists Association

Date

Meeting

2016/01/27

6

2016/01/28

7

2016/02/01

8

Carlo Berardi, Chair
Phil Emberley, Director
Professional Affairs

Canadian Psychiatric Association
Dr. K. Sonu Gaind, President
Katie Hardy, Director
Professional and Member Affairs

Canadian Society of Palliative Care Physicians
Dr. Monica Branigan

Council of Canadians with Disabilities
Dean Richert, Co-Chair
Ending of Life Ethics Committee
Rhonda Wiebe, Co-Chair
Ending of Life Ethics Committee

Dying With Dignity Canada
Linda Jarrett, Member
Disability Advisory Council

As individuals
David Baker, Lawyer
Bakerlaw
Jocelyn Downie, Professor
Faculties of Law and Medicine, Dalhousie University
Hon. Steven Fletcher
Trudo Lemmens, Professor
Faculty of Law & Dalla Lana School of Public Health,
University of Toronto

Alzheimer Society of Canada
Debbie Benczkowski, Chief Operating Officer
Mimi Lowi-Young, Chief Executive Officer

British Columbia Civil Liberties Association
Grace Pastine, Litigation Director
Josh Paterson, Executive Director

College of Family Physicians of Canada
Dr. Francine Lemire, Executive Director and
Chief Executive Officer

40

Organizations and Individuals
Dying With Dignity Canada

Date

Meeting

2016/02/01

8

2016/02/01

9

2016/02/02

10

2016/02/03

11

Shanaaz Gokool, Chief Operating Officer and
National Campaigns Director
Wanda Morris, Chief Executive Officer

Justice Centre for Constitutional Freedoms
Jay Cameron, Barrister and Solicitor

Canadian Cancer Society
Kelly Masotti, Assistant Director
Public Issues
Gabriel Miller, Director
Public Issues

As an individual
Carrie Bourassa, Professor
Indigenous Health Studies, First Nations University of Canada

Canadian Hospice Palliative Care Association
Sharon Baxter, Executive Director

College of Physicians and Surgeons of Nova Scotia
Dr. Douglas Grant, Registrar and Chief Executive Officer
Marjorie Hickey, Legal Counsel

Criminal Lawyers' Association
Leo Russomanno, Member and Criminal Defence Counsel

Dying With Dignity Canada
Dr. Derryck Smith, Chair of Physicians Advisory Council

Indigenous Physicians Association of Canada
Dr. Alika Lafontaine, President

As an individual
Carolyn Ells, Associate Professor, Medicine
Biomedical Ethics Unit, McGill University

Canadian Council of Imams
Imam Sikander Hashmi, Spokesperson

Canadian Paediatric Society
Dr. Dawn Davies, Chair
Bioethics Committee
Mary J Shariff, Associate Professor of Law and
Associate Dean Academic, University of Manitoba

Canadian Unitarian Council
Vyda Ng, Executive Director

41

Organizations and Individuals
Centre for Addiction and Mental Health

Date

Meeting

2016/02/03

11

2016/02/04

12

Dr. Tarek Rajji, Chief
Geriatric Psychiatry
Kristin Taylor, Vice-President
Legal Services

Coalition for HealthCARE and Conscience
Cardinal Thomas Collins, Archbishop
Archdiocese of Toronto
Laurence Worthen, Executive Director
Christian Medical and Dental Society of Canada

Alliance of People with Disabilities Who Are
Supportive of Legal Assisted Dying Society
Margaret Birrell, President
Angus M. Gunn, Counsel

Canadian Association for Community Living
Michael Bach, Executive Vice-President

DisAbled Women's Network of Canada
Carmela Hutchison, President

Society of Rural Physicians of Canada
Dr. John Soles, President

The Canadian Medical Protective Association
Dr. Hartley Stern, Executive Director and Chief Executive Officer

As individuals
Gerald Chipeur, Lawyer
Margaret Somerville, Professor
McGill University

42

APPENDIX B
LIST OF BRIEFS
Organizations and Individuals
A Network of British Columbia Physicians
Abramson, Jana and Abramson, Kenneth
Adams, Andrew
Advance Practice Nurses of the Palliative Care Consult Service in the Calgary Zone of
Alberta Health Services
Advocacy Centre for the Elderly
Agger, Ellen
Alliance for Life Ontario
Altschul, Denise
Anglican Church of Canada
Association of Registered Nurses of Prince Edward Island
Baker, David
Bennett Fox, Sara
Bracken, Susan
Brienen, Arthur-Leonard
British Columbia Civil Liberties Association
British Columbia Humanist Association
Brooks, Jeffery
Brzezicki, Barbara
Canadian Association for Community Living
Canadian Bar Association
Canadian Civil Liberties Association
Canadian Coalition for the Rights of Children

43

Organizations and Individuals
Canadian Conference of Catholic Bishops
Canadian Council of Imams
Canadian Federation of Nurses Unions
Canadian Medical Association
Canadian Medical Protective Association
Canadian Nurses Association
Canadian Nurses Protective Society
Canadian Paediatric Society
Canadian Pharmacists Association
Canadian Society of Palliative Care Physicians
Canadians Advocating for Ethical Hospice Palliative Care
Catholic Organization for Life and Family
Centre for Addiction and Mental Health
Centre For Inquiry Canada
Centre for Israel and Jewish Affairs
Chipeur, Gerald
Christian Legal Fellowship
Christian Reformed Churches in Canada
Clay, Pat
Clemenger, Lauren
Coalition for HealthCARE and Conscience
College of Physicians and Surgeons of British Columbia
College and Association of Registered Nurses of Alberta
College of Registered Nurses of Nova Scotia

44

Organizations and Individuals
Congress of Union Retirees of Canada
Congress of Union Retirees of Canada – Hamilton, Burlington and Oakville Chapter
Council of Canadians with Disabilities
DisAbled Women’s Network of Canada
Downie, Jocelyn
Dying With Dignity Canada
Dyment, Alan
Dyrholm, Joan
Eayrs, Jonathan
Euthanasia Prevention Coalition
Evans, David
Evangelical Fellowship of Canada
Farrow, Douglas
Fernihough, William
Fischer, Marilyn
Fleming, Loretta
Frazee, Catherine
Frizzell, Sue
Gobbi, Greg
Goodwin, Lori
Guichon, Juliet; Alakija, Pauline; Doig, Christopher; Mitchell, Ian; and Thibeault, Pascal
Hammond, Katherine
Hartman, James
HealthCareCAN

45

Organizations and Individuals
Hogan, Marcia
Holmen, Denise
Holub, Robert
Hudgins, Janet
Inch, Carolyn
Johnson, Shirley
Justice Centre for Constitutional Freedoms
Koch, Jule
Kuchta, Gay
L'Arche Canada
Lemmens, Trudo
Leung, Constant
Lindstrom, Lena
Living With Dignity
Lods, Margot
Lovell, Jane
Lydon, Patrick
Mackay, John
MacLellan, Pat
Mandel, Ezra
Maple, Doris
Marchand, Michele
Martin, Mary
Maryon, Betty

46

Organizations and Individuals
McPhee, Margaret
Meaney Svec, Katherine
Mental Health Commission of Canada
Morison, Rhonda
Mount, Balfour
Munroe, Pamela
Nurses Association of New Brunswick
Perks, Alan
Peterson, Heather
Physicians’ Alliance against Euthanasia
Protection of Conscience Project
Rankmore, Carol
REAL Women of Canada
Registered Nurses Association of the Northwest Territories and Nunavut
Saba, Paul
Salvation Army
Santoro, Daniel and Burrell, Althea
Secular Connexion Séculière
Seeley, Patricia
Shapray, Howard
Somerville, Margaret
Spencer, Richard
Squires, Colette
Sullivan, William

47

Organizations and Individuals
Sumner, Wayne
Surgeon General, Canadian Forces Health Services Group
Toujours Vivant-Not Dead Yet
Underwood, Katherine
UNICEF Canada
United Church of Canada
Vandenberghe, Joris
von Fuchs, Ruth
Walker, Ken
Warren, John
Widas, Mary
Willoughby, Annette
Wilson, John
Wilson, Linda

48

MINUTES OF PROCEEDINGS
A copy of the relevant Minutes of Proceedings (Meetings Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 13, 14, 15, 16) is tabled.

Respectfully submitted,

Hon. Kelvin Kenneth Ogilvie and Robert Oliphant
Joint Chairs

49

More Safeguards are needed for the Vulnerable
Special Joint Committee on Physician-Assisted Dying: Dissenting Report
This dissenting report reflects the views of the following Members of Parliament who
served on the Special Joint Committee on Physician Assisted Dying (the “Committee”):
Michael Cooper (Co-Vice Chair of the Committee, St. Albert-Edmonton), Mark Warawa
(Langley-Aldergrove), and Gérard Deltell (Louis-St-Laurent), as well as, Harold Albrecht
(Kitchener-Conestoga), who participated in a majority of the Committee meetings as an
alternate member.
Background
On February 6, 2015 in its ruling Carter v. Canada, 2015 SCC 5, the Supreme Court of
Canada (the “SCC”) unanimously stuck down Canada’s longstanding criminal
prohibition against voluntary euthanasia and assisted suicide (“physician-assisted dying
or PAD”), ruling that it was in contravention of the right to life, liberty, and security of the
person guaranteed under Section 7 of the Charter of Rights and Freedoms (the
“Charter”). Specifically, the SCC found the Criminal Code prohibition against PAD to be
void because it deprived:
A competent adult of such assistance where (1) the person affected clearly
consents to the termination of life; and (2) the person has a grievous and
irremediable medical condition (including an illness, disease or disability) that
causes enduring suffering that is intolerable to the individual in the circumstances
of his or her condition.1
The SCC has stayed its ruling until June 6, 2016 to allow Parliament to craft a legislative
response.2
The Committee has been tasked by Parliament to make recommendations to the
Government on how to best respond to the Carter decision.
Reasons for a Dissenting Report
In Carter, the SCC aptly described the difficult task now before Parliament: “it must
weigh and balance the perspective of those who might be at risk in a permissive regime
against that of those who seek assistance in dying.” 3 The SCC agreed that there would
be real risks to the vulnerable without a blanket proscription of PAD but that these risks
could be managed “through a carefully designed and monitored system of safeguards.” 4
Additionally, the Committee heard from many groups representing healthcare
professionals, including the Canadian Medical Association, about the need to protect
1

Carter v. Canada, 2015 SCC 5, at para. 4
We note here our significant concern that under these timelines it will be virtually impossible to
sufficiently analyze the far reaching consequences of allowing PAD in Canada. Quebec took six years and three
different administrations to finally come to a model that they deemed acceptable.
3
Carter v. Canada, 2015 SCC 5, at para. 98
4
Ibid., para. 117
2

51

the Charter rights of health professionals and health institutions that may
conscientiously object to taking part in PAD.
Unfortunately, the regime recommended in the Committee’s main report falls far short of
what is necessary to protect vulnerable Canadians and the Charter protected
conscience rights of health professionals.
Moreover, the SCC gave a reasonably straightforward roadmap for Parliament to follow
in its legislative response. Regretfully, the Committee failed to adhere to the roadmap
contemplated in Carter. On the contrary, the Committee recommends a legal
framework that does not conform to Carter.
Taken together, we as Members of Parliament on the Committee, therefore, feel that it
is our duty to our constituents, to Canadians, and to future generations to respectfully
present this dissenting report.
The Quebec Experience
Quebec is the only Canadian province to have adopted a law on end of life care. The
Committee’s main report presents the chronology of events leading to the adoption of
Quebec’s legislation but omits the most important factors.
In Quebec, only patients aged 18 and older, with severe and incurable physical
illnesses and whose medical condition is characterized by an advanced and irreversible
decline can request medical help to die. The law does not allow for advanced directives.
The attending physician must ensure that his or her patient has clearly consented to
PAD, ensuring among other things that it is not the result of external pressure; provides
the patient with a full prognosis on the condition and possible treatment options, along
with likely consequences. The physician must also ensure the continuation of consent
with interviews with the patient held at different times, spaced by a reasonable time,
having regard for the patient’s condition.
Quebec physicians are free to act according to their conscience. If they do not want to
proceed, they must refer the patient to an independent body which will contact another
physician. Two independent physicians must confirm that the patient meets all the
criteria prescribed by the subject legislation.
The work leading to the adoption of the law took place over a period of six years under
three different legislatures in a non-partisan working process. Ultimately, the legislation
was passed in a free vote of members of the National Assembly: 94 members voted in
favor of the legislation and 22 against. All votes against were from members of the
governing party, including 11 cabinet ministers.
Overall, we acknowledge that the Quebec experience is a result of a careful, thoughtful
and serious approach that better respects individual autonomy and better protects
vulnerable persons than the proposal set out in the main report of the Committee.

52

The Committee’s Report Fails to Respect Carter
The Carter decision is the law of the land. Any legislative response must adhere to the
parameters set out in Carter. Unfortunately, the Committee has recommended a legal
framework that fails to adhere to Carter.
Opening the door to minors contrary to Carter
The Committee, in Recommendation 6b of the main report, has recommended allowing
PAD in cases expressly excluded by Carter, including the possibility of mature minors at
a future date. The SCC was clear in saying that PAD should be available to “competent
adult persons”.5 If the SCC wished to extend PAD to mature minors, it would have said
so. Instead, the SCC went out of its way to expressly preclude this. This is supported
by the evidence of Professor Peter Hogg, Canada’s foremost constitutional scholar who
said:
The Supreme Court, in its order, spoke of a “competent adult person”. I
don't think it would be open to you, for example, to have 16 as an age of
consent for this purpose, because that would not be a competent adult
person. Between 18 and 21, I would think you would have some leeway
within the word “adult” to decide that.6
Likewise, a senior official from the Department of Justice concurred with Professor
Hogg, stating “the court clearly limited its ruling to mentally competent adults.”7
Further, the Committee heard important evidence about policy reasons for why PAD
should be available only to adults. The Canadian Pediatrics Society, whose opinion on
this matter carries significant weight, was unequivocal: “I think for the purposes of your
legislation, I would say 18 is an adult. I would be as conservative as you can possibly
be;”8 and again: “today I am here to speak to the matter of children, and with respect to
children I would argue that you should not go beyond the Supreme Court's
pronouncement.”9
No Safeguards for the Mentally Ill
Additionally, the Committee’s proposed legislative framework fails to sufficiently balance
respect for individual autonomy with the need to protect vulnerable persons, as
Parliament was called upon to do by the SCC in Carter. For example, shockingly,
neither in Recommendation 3 of the main report, nor anywhere else in the Committee’s
main report is there are requirement forpatients diagnosed with an underlying mental
health challenge to undergo a psychiatric assessment by a psychiatric professional to
determine whether they have the capacity to consent to PAD. This, notwithstanding that
the Canadian Psychiatric Association was of the opinion, and we think that the vast
5
6
7
8
9

Carter v. Canada, 2015 SCC 5, at paras. 4, 68, 127, and 147
Peter Hogg, Special Joint Committee on Physician-Assisted Dying (January 25, 2016).
Joanne Klineberg, Special Joint Committee on Physician-Assisted Dying (January 18, 2016).
Dr. Dawn Davies, Special Joint Committee on Physician-Assisted Dying (February 3, 2016).
Dr. Mary Shariff, Special Joint Committee on Physician-Assisted Dying (February 3, 2016).

53

majority of Canadians would strongly agree, that in instances where a person seeking
PAD has a mental condition a “psychiatrist needs to be involved to do a proper
assessment as soon as the request is made.”10
The SCC ruled that PAD could be practiced in a way that protects the vulnerable
provided it is accompanied by stringent safeguards. A regime that is not rigorous
enough to protect the vulnerable, if challenged, would almost certainly be found to
violate the Charter as well. There is little sense in replacing a law that was found to
violate the Charter in one way with a law that violates the Charter in another way.
Unfortunately, the Committee in its main report fails to strike the right balance between
individual autonomy and the need to protect vulnerable persons.
Other Concerns with the Main Report
We are of the view that the Committee’s main report should have placed greater
concern in three other areas: (1) palliative care; (2) conscience protections for
physicians and health institutions; and (3) advanced directives.
Palliative Care
During Committee hearings witness after witness highlighted the importance of palliative
care in the context of PAD. We also heard about the overall lack of proper palliative
care services across Canada. The Canadian Cancer Society highlighted the “serious
gaps in palliative care across the country.”11 The Canadian Society of Palliative Care
Physicians also described the training given to providers of palliative care as “woefully
inadequate.”12
The importance of palliative care in the context of PAD is effectively stated in the Final
Report of the External Panel on Options for a Legislative Response to Carter v.
Canada: “a request for physician-assisted death cannot be truly voluntary if the option of
proper palliative care is not available to alleviate a person’s suffering.”13 A genuinely
autonomous choice for a person to end their life is not possible if they are not offered
palliative care as they will see their choice as only intolerable suffering or PAD.
Testimony by the Canadian Cancer Society confirmed this: “any responsible policy on
assisted dying must guarantee access to quality palliative care for all Canadians.”14
We therefore believe that it is essential that the federal government work with the
provinces and territories and provincial/territorial medical regulatory authorities to
ensure that the option of palliative care is offered and available to any person
contemplating PAD.
Conscience Protections
10

Dr. K. Sonu Gaind, Special Joint Committee on Physician-Assisted Dying (January 27, 2016).
Gabriel Miller, Special Joint Committee on Physician-Assisted Dying (February 1, 2016).
12
Dr. Monica Branigan, Special Joint Committee on Physician-Assisted Dying (January 27, 2016).
13
Dr. Harvey Max Chochinov, Professor Catherine Frazee, Professor Benoît Pelletier, “Final Report on
Options for a Legislative Response to Carter v. Canada” (December 15, 2015), page vii.
14
Gabriel Miller, Special Joint Committee on Physician-Assisted Dying (February 1, 2016).
11

54

Section 2 of the Charter guarantees all Canadians “freedom of conscience and
religion.”15 There was near unanimous agreement amongst witnesses that physicians
who object to taking part in PAD for reasons of conscience should not be forced to do
so. Unfortunately, the Committee in its main report does not sufficiently protect the
Charter rights of physicians and health institutions.
The Committee recommends that physicians who conscientiously object to PAD be
obliged to refer patients through an “effective referral”. We believe that such a regime is
unnecessary and would infringe on the Charter rights of physicians. We note that
Canada would be first jurisdiction in the world to require an effective referral regime.
Instead, we believe that there are better models which protect Charter rights of
physicians and provide access to PAD for patients in other jurisdictions, including
Quebec. Physicians who conscientiously object to PAD are required to provide
information to patients on how to access PAD, and to advise a government agency of
the patient’s request. The government agency then connects the patient to a physician
willing to provide PAD.
Likewise, healthcare institutions that object to offering PAD should be exempted in
accordance with the Supreme Court’s determination that individual and collective
aspects of freedom of religion and conscience guaranteed under the Charter are
“indissolubly intertwined”.16
Advanced Directives
We are concerned about the advanced directive regime proposed in the Committee’s
main report. The regime proposed falls outside the parameters set by Carter.
Moreover, several witnesses recognized that from a policy perspective the type of
regime proposed is inadvisable, including the Canadian Medical Association.17
We further note that issues respecting advanced directives are extremely complicated.
Significant more time than was given to the Committee is required to explore the legal
and policy implications of advanced directives.
Conclusion
We strongly encourage the Government to craft legislation that takes full stock of the
abovementioned thoughts, concerns, and recommendations. We recognize the need for
law to comply with the Charter as interpreted by the SCC in Carter. The Committee
failed to adhere to the parameters set out in Carter, and likewise failed to propose
meaningful safeguards, as Parliament was called upon to do in Carter. In light of the
foregoing, the Committee’s main report is not supportable. We hold out hope, however,
that the Government will take note of the glaring flaws contained in the Committee’s
main report and do much better when it introduces its legislative response to Carter.

15

Constitution Act (1982), s.2a
Loyola High School v. Quebec (Attorney General), 2015 SCC 12, at paras. 92 to 94
17
Dr. Jeff Blackmer, Special Joint Committee on Physician-Assisted Dying (January 27, 2016).
16

55

Respectfully submitted,
Michael Cooper, M.P.
St. Albert-Edmonton
Mark Warawa, M.P.
Langley-Aldergrove
Gérard Deltell, M.P.
Louis-St Laurent
Harold Albrecht, M.P.
Kitchener-Conestoga

56

Supplementary Opinion
Submitted to the Special Joint Committee on Physician-Assisted Dying
by New Democrat MPs Brigitte Sansoucy (Saint-Hyacinthe-Bagot) and Murray
Rankin (Victoria)
The committee has worked diligently––in spite of its short timeline and deeply sensitive
subject––to deliver a report that honours the diversity of evidence it heard and makes
important recommendations for the government to consider in its legislative response. It
is a report in which we invested much time and care in shaping and are proud to
support. We thank each of the 61 witnesses who made themselves available to the
committee as well as the staff whose support was essential for the committee to deliver
on its mandate in due time.
We offer this supplementary opinion to provide Canadians with additional information,
beyond what could be included in the main report, that we believe they will find helpful
in understanding the context in which the committee worked and the options now facing
the government. As the government moves forward, it must continue to engage with
Canadians.

A principles-based approach to legislating on medical aid in dying
In making health policy, New Democrats believe in putting the patient first. In the case
of medical aid in dying, that approach is the only way to be respectful of the complex
and sensitive issues facing patients and their families, as well as responsive to the
urgency of their suffering. And yet for five months following the Supreme Court’s
unanimous decision in Carter, the previous government chose to neither take action in
Parliament nor consult with Canadians. Their failure to act was an affront to this patientcentred approach and a derogation of their duty to govern for all Canadians, particularly
those whose suffering was the concern of the Court and this committee. Those five
wasted months created additional challenges which the committee worked admirably to
overcome. Having now received the committee’s report, the government must move
efficiently to introduce legislation that protects the Charter rights of these patients.
This legislation must consider not only the specific recommendations found in the
committee’s main report, but the principles that drove our deliberations. It must ensure
that every eligible patient’s right to access medical aid in dying is upheld, and protect
any healthcare professional who objects for reasons of conscience from disciplinary
action. It must honour patients’ autonomy and self-determination––ensuring that their
privacy is not violated or their rights undermined by arbitrary bureaucracy––while still
maintaining effective safeguards to protect vulnerable individuals. Recognizing the
initiatives by provinces and territories since Carter, as well as the exemplary
consultation process adopted by Quebec with respect to Bill 52, the federal government

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must adopt an approach of collaborative federalism, respecting provincial jurisdiction
while providing the leadership necessary to avoid a regional patchwork.
As parliamentarians, New Democrats approach the question of medical aid in dying with
the understanding that, however our views may differ, every parliamentarian is guided
by deeply held values and the best interests of their constituents, and that the views of
each Canadian must be respected as we seek to protect the Charter rights of all. We
were pleased that the committee shared this desire to work in a non-partisan and
respectful manner. This is the approach Canadians expect of Parliament, and we are
hopeful that it can be maintained in the coming months as Parliament considers
legislation relating to the committee’s report.

Respecting the priorities of Canadians: expanding palliative care, supporting
caregivers
In its mandate from Parliament, the committee was tasked with providing
recommendations on a federal response that “respects the Constitution, the Charter of
Rights and Freedom, and the priorities of Canadians.”
The fact that palliative care can and must be improved was emphasized by every
witness who testified on the subject before our committee, was repeatedly affirmed by
representatives of all parties and both chambers of Parliament, and was recently the
subject of a motion tabled by NDP MP Charlie Angus (Timmins – James Bay) and
passed with near-unanimous support in the House of Commons in 2014. We can
imagine no more conclusive proof that palliative care is truly a priority for Canadians
and inextricably linked to the issue of medical aid in dying.
It is our view that making recommendations on the improvement of palliative care fell
squarely within the committee’s mandate and remains essential to any balanced
response to medical aid in dying. To that end, we introduced a package of concrete
measures to improve palliative care.
Several motions introduced by Mr. Rankin on February 4, 2016, were adopted as
recommendations in the final report, including:
 Re-establishing a secretariat on palliative care
 Creating a properly funded Pan-Canadian Strategy on Palliative and End-of-Life
Care
 Providing culturally and spiritually appropriate services to Indigenous
communities
At the same time, New Democrats believe the report could have gone further, to include
steps that were within the committee’s mandate to recommend and are necessary for
the government to take. These omissions are an opportunity missed but not yet lost.
Alongside the recommendations in the main report, the government can now:
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1. Demonstrate leadership by providing palliative care within federal
jurisdiction.
Palliative care can and must be improved, and the government has significant
scope to do so. The federal government is the fifth largest healthcare provider in
Canada, providing direct health services to specific populations such as First
Nations and Inuit peoples, veterans and active members of the Canadian Forces.
Providing palliative care for those within direct federal health responsibility would
help a significant number of Canadians and demonstrate leadership to provinces
and territories.
2. Help every Canadian family by improving Compassionate Care benefits.
Family members can experience chronic financial, physical, and emotional stress
when caring for a loved one. Helping caregivers provides significant benefits,
both for the individual families and the health care system.
Under pressure, the last government adopted the NDP’s proposal to extend EI
Compassionate Care benefits from 6 weeks to 6 months. Unfortunately, they
failed to address the narrowness of eligibility criteria so too many families caring
for loved ones will still be left out.
We believe that families should be able to access these supports not just when a
loved one faces a terminal illness, but also when other serious family health
events require time away from work.

Recognizing the broader health context
The committee report touched on several issues it described as “ancillary
considerations,” including the needs for meaningful consultation with Aboriginal
peoples, better support for mental health, improved palliative care, and a national
dementia strategy.
We wish to recognize initiatives by several parliamentarians who have worked hard to
address these priorities for Canadians, including former MP Libby Davies’ Continuing
Care Act, former MP Claude Gravelle’s bill to create a National Dementia Strategy, and
MP Charlie Angus’ motion to establish a Pan-Canadian Palliative and End-of-Life Care
strategy.
New Democrats see these issues as not only intrinsically linked to the issue of medical
aid in dying, but fundamental to a successful model of public healthcare in Canada for
the 21st century. Canadians want better access to primary care, as a well as a stronger
continuum of care, including home care, long term care and palliative care. They want
greater equality of access and outcomes, regardless of their postal code. They want a
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government that not only strongly supports the Canada Health Act, but that is
committed to ensuring its full implementation from coast to coast to coast. And they
want to see the shameful deficiencies in on-reserve healthcare addressed and
Aboriginal peoples respected as full partners in the development and implementation of
health programs.
We therefore urge the government not to address medical aid in dying in a vacuum, but
to consider its connections to other aspects of health policy, including social
determinants of health. New Democrats recognize that social determinants—such as
income and social status, education, employment conditions, social environments and
support networks, gender, and healthy child development—play a role in health
outcomes. These must be considered in relation to medical aid in dying to determine
how they may affect health outcomes, access to care, and potential vulnerability. The
government must take action to fight poverty, tackle rising food insecurity and address
the affordable housing crisis so that Canadians are on more equal footing as they make
end-of-life decisions.
In conclusion, we are proud to support the committee’s main report and wish to
recognize the hard work of all our colleagues who worked alongside us throughout its
development. Having taken a broader viewer of the committee’s mandate, we urge the
government to take note of the additional issues and recommendations put forward in
this supplementary opinion and to seize this opportunity to respond to the priorities of all
Canadians.

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